The best laid plans

Words:
Darren Heath

Who owns the copyright on architects’ drawings? It depends, of course

The RIBA recently conducted a disciplinary action against a member arising from a misunderstanding over the copyright in architects’ drawings.

The member – let’s call him Mr X – was convinced he retained a right in his drawings to prevent his client from completing the building without Mr X’s involvement.  He claimed that under the contract with his client he licensed the copyright in the drawings to the client and that this licence only lasted as long as he was instructed by his client. When the client terminated the instruction and had the building completed by someone else Mr X sent a bill to his erstwhile client for the licence fee which he said was due for using his drawings.

The client, not surprisingly, disagreed with this interpretation, and complained about Mr X’s behaviour to the RIBA.  However, Mr X argued that he had based his belief on a previous article in the RIBA Journal [Custody Battle, February 2013]. So what is the answer to the question: does a client who has paid an architect for drawings up to planning stage have a licence of copyright in those drawings to build the building?

Does a client who has paid an architect for drawings up to planning stage have a licence of copyright in those drawings to build the building?

The author of that previous article, an architect, described her experience of successfully claiming breach of copyright in her drawings. She had sent drawings for tender to her clients before being paid and her clients put out to tender and built the project but refused to pay her. So, as part of her claim for the debt, she claimed breach of copyright in the use of the drawings to complete the building.

This is where her case differs from Mr X’s, though: she had not been paid for the drawings, whereas he had.  The distinction is crucial because a client is granted a licence of the copyright in the architect’s drawings, either expressly, in a written contract, or by implication, simply by virtue of the relationship between the architect and the client. Even without a written contract an implied licence of copyright would exist where you pay someone an appropriate fee to produce something for you – you get an implied licence to use that thing for the purposes envisaged at the time of the commission.

If the client has paid for the drawings necessary for planning permission, then she may still adapt those drawings, either herself or by using another architect, for the construction phase

Implied licence

The principle of an implied licence of copyright comes from a court case that concerned architects’ drawings and which said: ‘The payment for sketch plans includes a permission or consent to use those sketch plans for the purpose for which they were brought into existence, namely, for the purpose of building a building in substantial accordance with them and for the purpose of preparing any necessary drawings as part of the task of building the building.’

In other words, once an architect has been fully paid for delivery of drawings the client has a licence to use those drawings for anything in relation to the building work envisaged.  Specifically, if the client has paid for the drawings necessary for planning permission, then even where the client does not engage the architect for the subsequent building, the client may still adapt those drawings, either herself or by using another architect, for the construction phase.

However, another case on similar facts found no implied licence of copyright in drawings the architect had delivered. Why the different decision here? Well, the reason was that the architect had been paid only a nominal fee. This makes sense because one would expect parties not to agree a full copyright licence if the architect agreed that she wouldn’t – at that stage – be fully paid for all her work. 

So the terms of an implied licence presuppose proper payment, and if the client fails to pay on the terms agreed, then the licence terminates. A written contract would usually mirror this, and indeed this is what the RIBA contracts say. Conversely, if the contract provides for payment of fees at certain stages, then, on payment of the fee for a stage, the client gets a licence to use the drawings produced at that stage, and continues to be licensed to use the drawings paid for, for all purposes related to building the project.

This position is also reflected in the RIBA contracts, which say: ‘…providing that all fees properly due are paid, the Client shall have a licence to copy and use and allow Other Persons providing Services to the Project to copy and use the drawings and documents only for purposes related to the construction of the Project or its subsequent use or sale, but may not be used for reproduction of the design for any part of any extension of the Project or any other project.’

The terms of an implied licence presuppose proper payment, and if the client fails to pay on the terms agreed, then the licence terminates

So whether the author of that previous article had contracted in writing or not, she was able to suspend the copyright licence when her client refused to pay what had been agreed.  By contrast, Mr X had been paid for all the work he had done so he could not suspend the licence. Unfortunately Mr X had completely failed to see this difference.

As a result, the disciplinary panel found that the client had not infringed the architect’s copyright and ruled against Mr X.

So the answer to the question is that under RIBA contracts, reflecting the position of implied licences at common law, the client has a licence to use the architect’s drawings in order to build the project (but no more) so long as the client has paid the architect for the services to date, in other words paid for the drawings.

 

Darren Heath is a solicitor and the RIBA’s in-house lawyer.

darren.heath@riba.org

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