Construction OberView

March 2011

Word to the Wise: Owners, Beware the Architect

By: Anthony F. Vittoria

In a perfect world, a project owner and its architect work as team to reach the successful completion of the project. Indeed, the architect can be invaluable in helping the owner achieve its vision for the project and in managing the construction so that it runs smoothly. However, in the event that a dispute arises between the owner and the architect, the owner should be aware that the cards are often stacked in favor of the architect, giving the architect an “unfair” advantage in negotiating a resolution to the dispute. That advantage relates to the copyrights that an architect obtains in the work that it produces for a project.

An owner of a project would understandably think that, because it had paid an architect for its services, it “owned” the drawings that the architect prepared. That is generally not the case. Specifically, pursuant to AIA B141 (1997) – one of the most commonly used form contracts between an owner and an architect – the architect retains all ownership rights, including copyrights, in the drawings, plans and specifications that it produces for a project. Conversely, the owner receives only a nonexclusive license to use and reproduce that material. If the contract is terminated for any reason, the owner’s license to use the architect’s work is also terminated – meaning the owner is barred from using or copying the architect’s work. Further, the owner must return the work to the architect within seven (7) days. A second license that enables the owner to use the architect’s work arises only after the architect is “adjudged” to have been in default of the contract. But the adjudication of the dispute can take months, if not years. A similar result occurs under the “common law” if the parties have an oral contract or if their written contract does not specifically address who holds the rights to the architect’s work.

Changes to the ConsensusDOCS: Some Selected Modifications

By: Paul S. Sugar

ConsensusDOCS has modified certain of its contracts for the first time since 2007. While some of the changes are little more than editorial, many are substantive. Discussed below are some of the key changes to the CD 200, Agreement and General Conditions Between Owner and Contractor. The short form CD 205 has also been modified to conform to the changes in the base document.

Other documents have been updated as well. They include CD 240, Agreement Between Owner and Architect-Engineer, as well as the short form CD 245; CD 410, Agreement and General Conditions between Owner and Design-Builder; CD 420, Agreement Between Design-Builder and Architect-Engineer; CD 500 Agreement and General Conditions Between Owner and Construction Manager (GMP with option for Preconstruction Services); and CD 750 Agreement Between Contractor and Subcontractor, as well as the short form CD 751.