New AIACC-Sponsored Law Fights the Unauthorized Use of Plans and Strengthens Rights of California Architects
Prepared by the Law Firm of Collins, Collins, Muir + Stewart, LLP
If someone builds off an architect’s plans without their consent, it can be called copyright infringement, “unauthorized use of instruments of service,” or breach of contract. But behind those dry euphemisms, it is really just one thing: theft. Theft of an architect’s time, effort, and unique work of creation, and a more subtle kind of theft, that of an architect’s security from claims. A developer that cuts corners and fails to pay for plans obviously does not run a tight ship, and if (or when) something goes wrong, the innocent architect can wind up in a lawsuit.
Fortunately, a new California law, California Business and Professions Code section 5536.4, is in effect. The law has two components: 1) a requirement of written consent to use an architect’s instruments of services; and 2) clear authority to withhold the instruments of services if the architect’s client does not pay or otherwise breaches the contract. The law is short and straightforward:
(a) No person may use an architect’s instruments of service, as those professional services are described in paragraph (2) of subdivision (b) of Section 5500.1, without the consent of the architect in a written contract, written agreement, or written license specifically authorizing that use.
(b) An architect shall not unreasonably withhold consent to use his or her instruments of service from a person for whom the architect provided the services. An architect may reasonably withhold consent to use the instruments of service for cause, including, but not limited to, lack of full payment for services provided or failure to fulfill the conditions of a written contract.
The new law incorporates California Business & Professions Code Section 5500.1, which provides a broad list of professional services: planning, schematic and preliminary studies, designs, working drawings, and specifications (§5500.1 (b)(2)). Now, California law requires the architect’s written authorization if anyone wants to make use of these services.
It took the work of many parties, including the American Institute of Architects,California Council (AIACC) which sponsored the enacting legislation, AB 630 (Holden D – Pasadena), to secure passage of the new law. Architect Ric. Abramson, AIA, principal of WorkPlays Studio architecture initiated the effort in a white paper addressing the problem and then advocated tirelessly to change the flawed status quo. Abramson spoke with us about the genesis of the change:
The culture and economy has changed so much in the last decade, with land and development rights becoming fully commoditized. After the crash, foreclosures, flipping, and even court receivers in bankruptcy were claiming ownership of instruments of service, and trying to eliminate or marginalize the architect, and there was no clear way to make sure the spirit and intent of the documents were carried out. Architects found themselves shut out of projects, but still facing potential liability, since it was their stamp and seal on the documents. As architects, we want our work built, but we also have a responsibility see that the standard of care is met and intent of the documents is carried out, as well as to the neighborhood stakeholders, the built environment, and to meet new commitments to green building standards. With the law [§5536.4], hopefully future use of the architect’s instruments will involve written consent – which careful architects will not give without a license, waiver, and indemnification, if they are not involved in construction.
In an age of commoditized plans and entitled parcels, this law is a welcome development. Here is an example of a use of the new law: An owner retains an architect to prepare plans for a project. After completing the plans, but before construction begins, the owner sells the land intended for the project and provides the buyer with a copy of the architect’s stamped plans. This new law can help the architect obtain concessions from the buyer, such as compensation, a release, or indemnity protection if the buyer proceeds with construction, because the buyer must obtain the architect’s written consent to build from the architect’s plans.
Will this law stop unscrupulous developers from trying to steal architects work? Sadly, no. But it will give architects working in California additional leverage when a project starts to go south. Written consent is now required and the architect can withhold consent due to lack of payment. If a developer argues that they can use the architect’s work without their consent or further involvement in a project, this section is the architect’s rebuttal, even if the architectural contract is silent on the issue. An arguably grey area is now more black and white in California.
Prior to this law, California and federal law offered few protections for an architect’s instruments of service. For example, under California’s Health & Safety Code § 19851(a), a public entity should not provide copies of building plans without the written consent of the architect who signed the original plans. But if the architect’s client already has the plans (or the public entity fails to do its job), that Health & Safety Code won’t do any good. Federal law also provides avenues of protection in the form of copyright. However, despite the value of this intellectual property, few architects take the time (about 30 minutes) or the money ($35) to register their plans with the United States Copyright Office. Furthermore, even when a developer concedes the architect has a copyright, the parties can argue over the use of that right. The new law helps fill this gap.
California Business and Professions Code section 5536.4 is the newest tool available to architects providing services in California to help them protect their work from theft. We encourage architects to use it in conjunction with copyright, a well-drafted contract, and optimal business practices that will collectively safeguard their work. If you have any questions on how to integrate this new law or any other California Business and Professions Code section 5536.4 is the newest tool available to architects providing services in California to help them protect their work from theft. We encourage architects to use it in conjunction with copyright, a well-drafted contract, and optimal business practices that will collectively safeguard their work.
If you have any questions on how to integrate this new law or any other tools into your practice, please contact our Oakland, South Pasadena, Orange or San Diego offices to discuss the matter further.
David E. Barker, Esq.
Ryan J. Kohler, Esq.
1999 Harrison St., Suite 1700
Oakland, CA 94612
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Orange, CA 92868
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Carlsbad, CA 92008
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South Pasadena, CA 91030
Nothing contained within this article should be considered legal advice. Anyone who reads this article should always consult with an attorney before acting on anything contained in this or any other article on legal matters, as facts and circumstances will vary from case to case.