Copyright of plans 1

[MiddleCE]

This must have been covered in a prior post, but I can't find it so here it goes:
I am a civil engineer and I prepare a site plan with proposed improvements, such as a driveway and grading details, all on private property. This is submitted to a permitting agency. Can this be copied by the public agency and given to others? If I have a falling out with the client prior to issuing the grading permit, due to delays from the public agency, can my work be used by others, without my permission, to continue with the permitting process or by them to make some changes and resubmit the work plan? I content that my work is complete and meets the agency requirements but the customer refuses to pay for work beyond the initial contract, that the public agency is asking for, but not required by code. There are other issues going on that caused this to "snowball" into a mess but I don't want my plan used by other without the understanding by all that the already submitted plan is okay and the owner does not have recourse claiming my plan is not complete. There is a lot going on in my questions but I am basically asking for advice on the copyright aspect of the plans.

 

[SlideRuleEra]

The short answer is "probably yes"... but for site and civil work it may be that easy. Copyrighting drawings for "architectural works" is more straight forward. However, it would be up to you to hire lawyers, etc. to determine if your work may be copyrighted and later to prove copyright infringement.

IMHO (I am NOT a lawyer) the legal fees would be excessive. Here is a recent summary of copyright protection as it applies to engineers:

http://www.cgspllc.com/pdf/Jeremiah-PENC-Copyright-article-Spring-2009.pdf

http://www.SlideRuleEra.net

http://www.VacuumTubeEra.net

 

[brandonbw]

As above said is it worth fighting in court? Because most likely that's where it will go to see who has deeper pockets. As to my opinion on the matter and how I would handle it, it can be obvious to the City Engineer on what's going on, and you may want to clarify that with the City person you are dealing with, and see if they have any insight.

B+W Engineering and Design
Los Angeles Civil Engineer and Structural Engineer

http://bwengr.com

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http://bwstructuralengineer.com

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http://bwcivilengineer.com

 

[TerryScan]

While it probably seems excessive to do on small projects, it is best practice to stipulate ownership of all work in a project in the contract for work.

Who has rights to copies of the following? To do derivitive work or alter the following? To make their own copies of the following?
1. The final paper plans.
2. The electronic files related to the plans.
3. Reports related to the work.
4. Calculations, worksheets, survey data, notes related to the work.

Especially in the case of a "falling out", items beyond the final plans often come into play.

 

[dik]

In many jurisdictions, the permitting agent requires a signed release prior to issuing documents to others.

Dik

 

[greenone]

My experience is similar to Dik-public agencies in my No Cal area do not allow the copying of professionally stamped drawings or docs unless both owner and stamper allow it. However, now that many files are viewed digitally, (I hear) it has been possible to simply download to USB from the public computer in the agency, because they don't watch you very closely while reviewing a file.

 

[zelgar]

Ok, there seems to be a lot in your post, and I'll try to address them all:
1. Copying - Many places (e.g., States, local agencies) have gone to keeping electronic copies of documents instead of keeping paper copies of everything for record retention that is required by law. They have the electronic files available to the public, and some places have it accessible via the internet (e.g., Indiana's Department of Environmental Management has their online at

http://108.59.49.89/Pages/Public/Search.aspx

). In general, once something is submitted to a public agency, the public legally has a right to look at it (Unless it's submitted as Confidential information).
2. The question if another engineer can use your original drawings to complete a project, without your consent gets trickier. Part of it depends on your originally contract, part of it depends on the law, and it also depends on how the original drawings are used. For example, let's say the "problem" the State had with your drawings were only with some detail drawings. The general layout is fine, but some specific details need to be changed. The new engineer providing new detail drawings to your exisiting drawings may not necessarily make them invalid or be against the law.
3. When it comes to fees, it depends on how your contract is written. If your contract was written that you'd provide all drawings necessary in order to get the permit for Project X at a fee of $Y, then your client is within their rights to expect you to make the revisions without any additional fees. Also, it depends on what your client owns. Do they get X copies of the drawings; electronic copies (non-editable and/or editable ones); reports; and/or calaculations?

While I understand you're frustrated, you need to look at the BIG PICTURE whenever things are going South on a project:
1. How much is it going to cost you to finish the project?
2. How much is it going to cost you if you don't finish the project. Consider cost of loosing this client and potentially others due to potential harm to your reputation.

 

[civilman72]

There appears to be two separate issues:

1. The public agency may require someone to sign a disclosure but they cannot withhold this information from the general public.

2. The ownership of all documents and files you create for this project should be clarified in your contract with the client. If this is not mentioned in your contract you probably have very little recourse if the clint wants to give them to someone else, whether or not he's paid in full.

 

[brandonbw]

Zelgar: Any ideas of how to make the original contract/drawings stand up if there is an issue later on down the line? I can easily see others getting into a situation similar to the OP, even if the original contracts are pretty well laid out.

B+W Engineering and Design
Los Angeles Civil Engineer and Structural Engineer

http://bwengr.com

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http://bwstructuralengineer.com

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http://bwcivilengineer.com

 

[Ron]

TS and Zelgar made good points and generally correct...remember, each jurisdiction has it peculiarities and informalities that might not fit logic nor legality.

Make sure your document ownership clause in your contract is tight. If for any reason you give up ownership (as required by some public agencies), then you need to make clear the terms of re-use and that such re-use cannot occur without your written permission and remuneration. Design documents are "instruments of service" not just pieces of paper or electronic files.

Further, many states require that drawings be submitted in non-changeable form, including electronic files. State in your contract that any change not done by you invalidates your drawings and your liability.

 

[zelgar]

Brandonbw, I really don't know. I work for the State of Indiana, so I'm normally one of the guys asking for additional information. Most of the times, it seems like you're only dealing with one engineering firm, unless the project has been delayed for years, or you're dealing with a project that's modifying something that already exists.

 

[ameyerrenke]

I typically ask for 10% deposit (of the project value) for the submittal drawings, a letter of intent stating that if the project goes forward the client will use my company, and put the below disclaimer on submittal documents. If the deposit for the drawings is high enough, they'll be less likely to find someone that will do the project for them for that much cheaper. Doing this is not a guarantee that you won't get screwed, but at least they have some obligation to you. I would think that if you had a letter of intent in place and the client had someone else complete a project per your drawings that you would have a legitimate case in court... Whether or not it makes sense to take it to court is a completely different determination.


"THE DRAWINGS AND DATA IN THIS DOCUMENT, AND THE INTELLECTUAL PROPERTY AND CONFIDENTIAL INFORMATION IT CONTAINS ARE THE PROPERTY OF _________________. ANY PARTY ACCEPTING THIS DOCUMENT DOES SO IN CONFIDENCE AND AGREES THAT IT SHALL NOT BE DUPLICATED, IN WHOLE OR IN PART, NOR DISCLOSE TO OTHERS WITHOUT THE WRITTEN CONSENT OF ________________"

 

[Kuhuh]

Surely, one can not post a legal disclosure on every page. Are there no laws giving ownership rights to the designed drawings once stamped and signed?

 

[coloeng]

Typically an engineer is hired to provide a set of plans that will be used by the client to perform certain activities. Part of the engineer's responsibility is to design it to local codes and ordinances. If there is a disagreement between the engineer and local government about what those codes or ordinances are, the engineer should either make the changes requested or appeal the decision of the local government to their bosses, either the town manager, town council or whatever governing board would be applicable. You can either choose to spend your time and money changing the plans or appealing the decision.

Until the product is paid for, it remains the property of the engineer. Once the client has paid for the work that has been done, in my opinion, the work product becomes the clients and he can do whatever he wants with it. If he wants to have some other engineer modify the design, that is his right, but the original engineer no longer has any liability for anything that is changed.

I've been on both sides of this fence.

 

[dik]

coloeng... depending on the jurisdiction, I'm not sure that payment has anything to do with it.

One of the biggest problems that consistently occurs is when an Owner withholds funds when work is not done to his satisfaction. Often with construction contracts the work has to be formally 'rejected' first and for reasons... Owners are not overly receptive to my asking them to confirm with their legal advisor, thinking that it's a 'Right' they have, being the Owner to withhold money.

In many jurisdictions, the engineer (aka professional) automatically retains the copyright of the documents, the ownership may lie elsewhere. The copyright may be transferred as part of an agreement. This may not be true in all places, but it is my experience that this is often the case.

Dik