representative was allowed to recover from the employer the amount of the installment which had been earned at the time of the death of the engineer.2

§ 52. Ownership of Plans.-Whether the plans prepared by the architect are to be considered his property, or the property of his client, is a question of long standing between them. As a practical matter the architects, by insisting on their claim that the plans are their property, seem to have induced the public generally to acquiesce in this point of view. As a matter of fact, however, unless there be a specific provision in the contract whereby it is agreed that the plans are to be and remain the property of the architect, they must be legally considered, it seems, as the property of the employer who has ordered, accepted, and paid for them.3

This is on the perfectly logical theory that the plans are an essential part of the building contract, and that while the architect, under the rule that work embodied in some material form and resulting from an individual's mental conception and labor is to be considered the property of the one creating it, has property rights in the plans prepared by him, yet when these plans have been prepared, pursuant to his employment, and the services expended in their production have

2 Stubbs v. Hollywell R. Co. L. R. 2 Exch. 311, supra.

3 Moffat v. Scott, 8 L. C. Jur. 310; Windrim v. Phila

delphia, 9 Philadelphia, Pa. 550; Wright v. Eisle, 86 N. Y. A. D. 356.

been paid for, and the plans published to the world by filing or otherwise, the right of ownership in the plans passes from the architect to the client who has employed him. The New York court has stated the matter well in the case last cited,* where, citing and quoting from a decision affirming the rule that

"Every new and innocent product of mental labor which has been embodied in writing or some other material form," is "the exclusive property of its author, the law securing it to him and restraining any other person from infringing his right,"

the Court goes on to say that, nevertheless, where the architect prepares plans and specifications and files them with the Building Department and superintends the construction of the house and receives his compensation, he has, thereby,

"published his work to the world and can have no exclusive right in the design or in its reproduction. It seems to us that all of the property rights in these plans, if they had any value as property after the publication, belonged to Litson (the client), rather than to the plaintiff (the architects) in this action . . ."

Architects have come to realize, within the last few years, the importance and necessity of a definite agreement between their clients and themselves covering, in addition to the other conditions of their employment, this matter of the

4 Wright v. Eisle, 86 N. Y. A. D. 356.

Palmer v. DeWitt, 47 N.

Y. 532, citing Shortt on the
Law of Literature, 48.

ownership of the plans and specifications. Prior to the preparation of the standard form of contract between architect and client, the standard form of the construction contract contained a provision that

"All drawings, specifications and copies thereof, furnished by the architect, are his property. They are not to be used on other work and, with the exception of the signed contract set, are to be returned to him on request, at the completion of the work. All models are the property of the owner."

Inasmuch as the architect was not a party to the contract between the owner and the contractor, the effectiveness of this provision, as between the architect and the owner, was very questionable. This condition was rectified when the Institute published its forms of contract between the architect and the client and incorporated in them the provision that the plans and specifications, as instruments of service, are the property of the architect. As it is now worded, the provision in the Institute form is as follows: "Drawings and specifications, as instruments of service, are the property of the architect, whether the work for which they are made be executed or not."

It would be well if this provision were amplified so as to provide that the drawings and specifications may not be used on other work, and shall be returned to the architect at his re

quest, upon the completion, suspension or abandonment of the work.

An agreement to the latter effect, between architect and client is good and they may quite properly contract that the plans shall remain the property of the architect. Nevertheless, it must be remembered that the architect has no intrinsic property right in the plans, unless they are patented or copyrighted, and that he can never safely rely upon custom alone to establish his right to retain them as his property.8

McCoy v. Grant (Minn.), 174 N. W. 728; and see Hill v. Sheffield, 117 N. Y. Supp. 99.

7 Smithmeyer v. U. S. 25 Ct. of Claims 481, aff'd 147 U. S. 342.

8 Moffatt v. Scott, 8 L. C. Jurist 310; Windrim v. Philadelphia, 9 Phila. 550; and see also, with respect to plans submitted in competitions, Walsh v. St. Louis Exp., 101 Mo. 534.