CHAPTER VII.

THE TITLE TO THE PLANS.

General misconception of architect's rights in plans.-The legal rule. The protection of the architect by contract, patent or copyright. The rights of third parties.-"Design patents."

If one ask fifty architects, chosen at random, where the title to the plans rests, in the absence of an agreement with respect to their ownership, ninety per cent of those to whom the question is put will promptly and with conviction answer that the plans belong to the architect. If one tells this same ninety per cent that they are wrong and that, under such circumstances, the plans belong to the client, probably half of them will explain to you that, with all due deference for your legal wisdom, they know better. There is no point as to which architects, as a whole, have a more absolute or tenacious misconception.

The law is, generally, that, in the absence of a contract provision to the contrary, the plans are the property of the client who has ordered and paid for them. If a different result is to be arrived at, it must be done by agreement between the parties.

The misconception of architects on this question is due largely to the fact that the rules of practice of the American Institute have long provided that the plans are the property of the architect. The fact that the rules state that this is so does not, however, make it a fact. Even if it be established that it is a custom of the profession that the architect is the owner of the plans, the client is not necessarily bound

by this fact, unless it can be shown that he had cognizance of it. For some years before the issuance of the Standard Form of contract between architect and client, the standard contract between client and contractor provided that the plans belonged to the architect. The weakness of this provision, as already indicated, lay in the fact that the architect was not a party to the agreement. There was consequently no privity of contract, as it is called, between the architect and his client on this point. The Standard Contract between the architect and client now provides that the plans, as instruments of service, are the property of the architect. If a contract with the client, embodying a provision to this effect, is entered into, the ownership of the plans will remain in the architect and the latter will be protected, accordingly.

The architect must remember, however, that this ownership is not a matter of divine right, but of contract, and see to it that his rights are properly recognized and made clear. The point may be of considerable importance, especially in a case where the client becomes dissatisfied and employs another architect. The latter, if not strictly ethical, may, at the request of the client, attempt to proceed with and complete the work in accordance with the plans prepared by his predecessor. If the latter can establish the fact that the plans are his property, he may be able to protect his rights and prevent the use of his ideas without proper compensation to him, when otherwise he might be helpless.

Another interesting problem is that dealing with the rights of third parties in the plans. How far can the architect protect himself from the use of the plans by others, and how far can third parties make use of them without his consent? The answer to these questions will depend upon the special circumstances and facts in each case.

As a general rule, it may be said that when a publication of the plans has been made, they have become public property and the rights of the architect with respect to them, so far as the public is concerned, is at an end. By publication in this connection is meant a legal publication. It does not mean publication in the sense in which a book is published, but publication in the sense of making public. A filing of the plans, for instance, with a Municipal Department, where they are open to inspection as public records, may be such a publication.

Under certain circumstances, a plan may be copyrighted or even patented. As a rule, no patent protection is possible. To make it possible, the plan must contain some new and unique ideas-some special feature of construction or design which may be made the subject of patent claims. A plan may be more readily copyrighted. The value of the copyright in the ordinary case is more a moral value than a legal one. The statement upon a plan that it is copyrighted will sometimes be of material aid in discouraging any unscrupulous use or copying of the plans by other architects or by third parties. If the plans are such that valid patent or copyright protection can be and is secured, the publication of the plans may be made without waiving the rights of the architect.

In a rather interesting case in my practice an architect developed a unique and clever plan for a certain type of semi-public building. The plan combined unusual elements both of utilitarian and artistic merit, but no patent or copyright protection was applied for. After the architect had made the preliminary sketches, been responsible for the completion of the plan and completed the drawings, the client paid him for the work done up to that point, and then turned over the work to another firm of

architects, who proceeded with it and supervised the erection of the building. I do not know whether these latter architects were aware of all the facts, and prefer to assume that they were not, in view of the ethics involved. The net result unquestionably was, however, that the architect whose talent and ability was responsible for the idea received a very modest sum for the sketches and plan, and that the chief compensation was received by the architects who supervised the construction, in accordance with the plans which my client had made. There was nothing which the latter could do as between himself and his client, as he had neglected to make any contract or secure any memorandum covering the relationship between the client and himself. In the absence of an agreement, the law governing the case provided that the plans belonged to the client and not to the architect, and the client, having paid for the plans, had consequently a legal right to turn over the work of supervision to the other architects. If my client had secured legal advice and a proper contract in the beginning he might have been protected, and would not have laid himself open to the treatment which he received.

Special designs, for lighting fixtures, hardware and the like, may be made the subject of what are known as "design patents" and thus protected.

CHAPTER VIII.

SUPERVISION.

Responsibility of architect for reasonable skill and diligence. -Delegation of authority. Securing and checking statements of quantity and unit prices.-Negligence of the architect.Directions by owner direct to contractor.-The architect as arbitrator.

The average architect would probably be scandalized if he were told that in many ways his profession is similar to the legal profession. His natural offhand impression is that the two professions are so wide apart as to have no substantial similarity to one another. As a matter of fact, the architect, in placing himself before the public as a practicing member of his profession, assumes exactly the same responsibility for reasonable skill and care in the practice of his profession, as that which rests upon a lawyer or, for that matter, upon a physician.

Like the lawyer, the architect is acting in a position of trust and confidence; like the lawyer, he is the authorized agent and representative of his client, within the scope of his employment; like the lawyer, he is assumed to possess, by reason of his calling, special skill and ability in the practice of his profession; like the lawyer, he is under definite obligations to the public, to practice his profession with proper care and diligence, and in all work relating to the construction of buildings used generally by the public to conduct himself with the reasonable skill which he is assumed to possess. It is not necessary that he be possessed of extraordinary skill, but he must at least be possessed of sufficient ability and