Just kinda wondering here. I’m on the board of a parent run daycare. We’ve had a contractor do some drawings for an expansion, he’s done a quote for us (we used him for previous reno, and we were happy). Now some of the other board members think we should ‘shop’ his drawings around. We did pay him for the drawings, but, Is that fair?
If I buy a bottle of coke, even though I own it, I can’t re-package it and sell it as pepsi. Coke still owns the rights. Does that work with drawings, especially if the contractor thinks that he’s getting the work?
Just curious what you think
Replies
what we think doesn't matter as much as what he thinks.
and what the laws are for design liability in your state.
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My $.02
What did you pay him for the drawings?
Was it just an hourly fee, or more like he is a design/build guy and you paid for the design part?
Did you pay for the drawings? What did your agreement say about those drawings.
I would not pay for drawings that I couldn't bid out. I wouldn't sell drawings with the condition that they couldn't be bid out. i guess I'm just a fair kind of guy.
Reproducing them and allowing others to build off of them somewhere else would be wrong but once you buy them, you own them and can build it a thousand times with anyone you want to...here in MI.
blue
Just because you can, doesn't mean you should!
Warning! Be cautious when taking any framing advice from me. There are some in here who think I'm a hackmeister...they might be right! Of course, they might be wrong too!
>you own them and can build it a thousand times with anyone you want toI hope no one tries that with mine. They're designed for specific sites and conditions, including the associated engineering that takes into account soil conditions, bearing capacities, etc. My drawings are one-time, one-place, which doesn't address the original question, but which piffin answered sufficiently.###Paul, or Mike Smith, since you're design-build guys, how does your contract address this?
Edited 3/15/2005 12:03 am ET by Cloud Hidden
I do the design and print the drawings for a design fee, separate from my construction cost plus billing. I have never let it bother me if somebody were to have anothe builder do what I had designed. It has never happened yet. The clients who did not have me build the design, never did anything. If they had, my price is adequate that I have been rewarded for my expertise in creating the design. The clients never have a hard copy of the drawings before I am paid. What they might have is variously booby-trapped before that. they may have jpeg s with no dimensions given, or pdf's at a scale close but not quite to normal drawings. The prints I provide are totally accurate and scaled and include the dimensions visible. That protects me until I am paid, which is when I print out the real thing. More often, all they get to see before paying up are 3D renderings which are great sales tools for me and more understandable for the average client.BUT -Mike has pointed out that any designer could be held liable for cerain aspects where errors or omissions caused problems.The subject has been discussed in various forums before, and it keeps coming back to the fact that the intellectual property rights to the design belong to the designer. That is why I said that the primary concern here is whether the builder who provided these drawings has considered himself properly remunerated for the design work and whether he would initiate a lawsuit over the proposed sharing of the design services he provided. What his view point is, in other words.
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We give permission for the client to use the plans once. It is expressed that it is not a license to use our designs for profit without expressed permission, which defers to a licensing agreement.
We go on to explain that we can provide one of a kind designs, adaptations on our standards or designs which the client would retain the rights to (for a given period-but that gets pricey).
L
GardenStructure.com~Build for the Art of it!
In my case, i charge the client for the designs and drawings. If they want to build 5 of the same building, thats fine with me.
The way i see it, thats potential for up to 5 builders to see and work with my plans, and up to 5 builders who now know my name, and my quality, and up to 5 builders who can/will refer me to future clients for thier design needs.
Also, the more buildings that are standing as a result of my work i take as a compliment, and a selling point to future clients
But thats just me, i'm a man of the people, not a man of the wallet
While my heart agrees with you, my sense of business does not. You increase your liability and exposure to risk five fold with no more return on your investment. Eventually, tjhe codes and standards change, while your same design is still potentially being built but with someone else adapting them to the new codes, for good or bad, but still with you name on the banner.One of the basic tenants of capitalism is that the risk takers are the money makers. Why assume risk with no return? Applying that as a principle of business will eventually bankrupt you.
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Sorry Blue, the lawsdoesn't back you up on that. There are plenty of designers and archies who have won lawsuits over theft of intellectual property rights... The plans sold over the web for repeat homes come with a stipulation that they are one off each. A fee is required for repeats.ME, if I sell you a set of plans, I would not mind if you built two or three of the same house, but if you turned the plans around and sold them to someone else, I would want a cut. That's me.And for this local builder in question, I think it all depends on what his idea was when he did the drawings. There are plenty of guys who will draw something up for a set fee - say eight humndred bucks, knowing htey are working at the board for peanuts, but counting on getting the work building it to make up for the slave wages at night. if that is his gig, and he finds out that the customer is now shopping his plans with other buiolders, he would be in his rights to burn the place down, figuratively speaking. For a small community, the place to start is with him, not with shopping the plans around. do it behind his back and it stinks to high heaven.One reason I hate to work with groups. You can NEVER satisfy every one of the committee.
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Sorry Blue, the lawsdoesn't back you up on that.
Sorry Piffin, I think the law would back me up on this because I qualified my opinion with the following questions, which have remained unanswered "Did you pay for the drawings? What did your agreement say about those drawings?"
I think this entire discussion immediately derails without those answers. I just worked a show this weekend and offered design and planning to a dozen people for their projects and I told each one that after they have the plans and specs in their possession, they would be free to shop it around to as many contractors as they liked in order to get the most value for their plans and specs. Of course, I'm going to get my fair share for that phase of the bid process.....
blueJust because you can, doesn't mean you should!
Warning! Be cautious when taking any framing advice from me. There are some in here who think I'm a hackmeister...they might be right! Of course, they might be wrong too!
I love it when you guys argue law. If the contract provides that the customer owns the drawings and design, he gets to shop them around. Most archs use the standard form contract that provides that the Arch owns the designs and drawings, so they are protected. If there is no contract, then the intellectual property rights remain with the designer.
And as Mike said, it is very important that, should the designs be shopped around, you be indemnified should the drawings contain any errors or omissions. I would also include in any contract an affirmative statement that all drawings should be deemed drafts to be finalized for accuracy and field conditions at the site during the course of construction.
For the most part, when you buy a design, you only buy the right to use it, not the design concept itself. But all is subject to the agreement.
SHG
shaggy...
<<< I would also include in any contract an affirmative statement that all drawings should be deemed drafts to be finalized for accuracy and field conditions at the site during the course of construction>>>
nice clause, santa...
guess where that will be appearing in the near future
spring get as far north as Long Island ,yet ?Mike Smith Rhode Island : Design / Build / Repair / Restore
spring get as far north as Long Island ,yet ?
Snow on the ground still, but 50's in the afternoon. Another storm coming later this week, they say. I'm getting too old for this.
Someone shops my drawings... and I am going to be REAL pizzed. Especially if the point of shopping the drawings is to try to get me to cut my price (which is normally the case). Technically... are they yours? Probably... but I agree it depends on the law in your area.
If ya want to negotiate... be up front and say that you need to cut this or that and work with me. I am a reasonable guy... and I'll lay odds that if you have used this guy before... and invited him to work with you again... you think the guy is reasonable, also.
If you want someone else to bid the job... great. Have them do the drawings of how THEY would do it... and pay them for the new set of drawings. It will give you MUCH better insight as to how they think and work. Use that insight to assist in evaluating who to use.
The board members are walking a fine line that will most likely destroy a good working relationship if they do it. The "politics" of a board position is leading them to a power trip. It's hard enough to do work for any type of "board management"... don't make it any tougher than it has to be. Put your competing contractors on a level field... and have each one propose the WHOLE job (including drawings)
Edited 3/15/2005 12:28 am ET by Rich from Columbus
Let's not lose our perspective here, we are talking about a co-op day care center, not a greedy homeowner/self-appointed developer tycoon.
In your case, as piffin said, I would be completely upfront with the designer and ask him what he feels about it. If he lets you shop it around, thank him and ask him to write a very thorough disclosure across the face of the plans that they are conceptual only. If he is not comfortable with that, I would strongly advise the board not to use the plans and next time disclose your intention with any plans before you hire someone.
I can understand how the board is trying to be good stewards of the money promised for this project and wanting to see other bids. But since you already have good experiences with this guy, I would also let him have a chance to review your competitive bids. It is unwise to lose a bird in the hand...
"Let's not lose our perspective here, we are talking about a co-op day care center, not a greedy homeowner/self-appointed developer tycoon."
I don't see how it matters WHO the other party is. Square dealing pays. Free speech leads to a free society.
when I started my house, I got the prints from a coworker who had a house built. I was going to build his house again. I wanted some changes done to the print, so I went to the house designer and tried to get them done. He wanted $500 for five minute work. Told him I could not afford that and I will build as is. He claimed if I tried he would sue under copyright and I will never move into the house. So I paid the five hundred and he gave me five copies of the print.
You gonna shop his drawings around? BUT......, all ethical, moral, and legal issues aside.....
How do you know that they are accurate.
In any climate where folks do this kind of thing, do you suppose that the contractors are so stupid as to not realize that it is a possibility, and wouldn't protect themselves even just a tad?
I know of one window quote delivered to a fella who "shopped it around" to get the best price, and the original quoter had the good fortune to pass by the house and observe a whole cadre of lackies with measuring tapes trying to find out which window went where.
Seems like he had (and he told me so) deliberately misstated sizes on his quote based upon his gut feeling that the owner would shop it around. The competitor-fella who "beat his price" by whatever small amount hadn't even bothered to do his own measurements.
Methinks he wouldn't be making that mistake again anytime soon.
And, moreover, why deprive yerselves of the creativity and experience of other contractors by asking them to quote on someone elses drawings. They may have less expensive solutions, so why make em dance to the beat of the first contractors drum.
If I involve myself in the concepetual stage, and produce significant detail which I feel could be "shopped around" I protect myself by specifically stating that the drawings remain my property until the job is accepted and that they may not be released to any other party without my express written permission. To me that is a tactful way of stating that if yer gonna try and profit from my free labour, you may end up paying for it anyway. Keeps honest folks honest, I hope. At least makes em think twice about cheating.
It has been years since I put that on any drawings though.
Besides, from my understanding of copyright laws, if you didn't pay him for the drawings, they are, I believe, his. IE: Not yours.
Eric in Calgary
Hardly a rocket scientist.
depends on your design contract
mine has a clause that says i'm the only one who can build from them.. and a hold harmless clause if anyone other than me builds from them..
the owner can use the drawings as a conceptual design to have someone else redesign the project
it's a liability issue with me.. if i'm the GC, i'm liable anyways.... but my design fee DOES NOT include being liable for someone els'e execution of my design
as the GC, i can find any error as i build, but if someone else is working from them, they can miss my errors or even introduce errors of their own
anyways, state law and your design contract will govern..
but beyond that.. there is an understanding of the relationship that developed.. if your committee feels they are breaching that understanding, then it's bad form.. if they are within the understanding, then no problem
Mike Smith Rhode Island : Design / Build / Repair / Restore
EricIf a contractor pulled that stunt on me he would be court on civil charges. And if motive could be proven CRIMINAL charges.They PAID for a design on if the company deliberately made it un workable that is PURE FRAUD, PLAIN AND SIMPLE.
IT bugs me that we weren't upfront with him. He thought he was getting the job, he did the drawings, pulled the permit, and is just waiting for us to say go. Meanwhile, we have a couple of people thinking we should be looking elsewhere. And meanwhile, Joe might be turning down a 250K job, waiting for us to make up our mind on a 160K job.
Yeah, we paid him, but as mentioned above, did he charge us less than he would have if he knew he was only drawing, not building. There was no 'contract' as to who was doing what. (There is a contract for when the shovel goes into the ground, if it ever does....) This is small town Ontario, his kids go to the daycare, my teen-age daughter is friends with his niece, he lives next door to my cousin, you know the town. He didn't think it necessary to get everything in writing. More fool he.
There's another thing, he pulled the permit for us. I know when I got a permit for our house addition, I had a sparse set of drawings. When the county guys looked at who was building my addition, they said, Oh, Tom, we know him, his work is great, those drawings are good enough for us. I'm wondering if the permit is contingent on Joe doing the work for us. This might be one reason why tape gets redder.
And now they want to hire a construction manager???!! I missed the last board meeting. I'm wondering what that means. Someone else on a power trip, moving electrical boxes.
Run, Joe, run.
Martagon,
You (collective, impersonal) paid a design build to make you some drawings on the contingency he was going to be the builder. 55555.1
He has pulled the permits on your sayso that he was going to build. 55555.16
Ask Shglaw to be more certain, but, IMO, he has a contract with you.
Even if your local law says otherwise, you will be using those plans as a dagger if you shop them around.
You will be stabbing yourself in the back in front of the whole small town. 55555.16. You will have shown your friends and neighbors that you have no ethics and are willing to break promises as long as those promises can't be proven in court.
You will be tearing your daycare in two with hate, discontent, and distrust. The fact that it was even considered will cause some internal stress.
Baaad move.
SamT
Someone is looking to shop AFTER he has pulled the permit? You ARE kidding... right?
"Someone is looking to shop AFTER he has pulled the permit? You ARE kidding... right?"That really brings to question on BOTH SIDES what kind of contract that there is either written or implied.From the these post I don't see anything that would authorize the contractor to pull the permit.
Good point... the contractor should have a contract in hand before pulling the permit.
Have I EVER done it? Yep... and regret to admit that I have done so (once). However, the application for permit here requires the property owner to sign... or an agent for the property owner to sign. I'm going on the assumption that a signature of the property owner is required in this case.
Nope, not kidding. We told him in November that we were going ahead. Nothing signed. Got him to get permit. Now they're asking other people's opinions.
No wonder contractors go grey.
So you (board) verbally agreed to the contract... but it is not written yet? So they led on the contractor in the belief that he was getting the job... and then want to pull it out from under him? Without discussing it with him first? After he has done the work of prepping the drawings and has pulled the permit?
And you may want to check for your locality... as I referenced above.. the permit possibly (probably) needs the signature of the property owner. Who signed it?
This has the makings of a bad situation; real fast. Let me take a WILD guess... the person(s) who are now wanting to shirk the verbal deal are either, #1 mid-level wannabee-big-shots who have deep-seated anxiety over not being breast-fed as a kid and have not been able to manifest their guilt over not buying little Timmy his first car yet (at the ripe-old age of three)... or... #2 have the ethics of a weasel (and yes... I did use the "w" word carefully and after much consideration)?
I certainly do not know all of the details here... I only know what you have posted. But it sounds like there is something more at work here than a 160k construction contract. Sounds like political BS that is effecting the day-care, the contractor, and the relationships all around. Allow it to continue, and all of the above will be damaged... most likely irreparably.
My suggestion... someone needs to step up and figure out what the REAL issue that these people have... and work it out. This contractor has no position within the political BS and is not being paid to become the political pinball that it appears some want to make him. Someone of ethics should step up and point this out.
Edited 3/15/2005 11:58 am ET by Rich from Columbus
Well, why do you think I'm asking you guys. I unfortunately missed the meeting last week, and got the minutes this week. I thought it was settled in November.
I have just sent an e-mail to the various members of the board, asking if they have ever heard of breach of contract. It will be interesting to see what I get back. Damn, as a board member, I could be caught up in the lawsuit.
Helluva spot to be in. Confidentiality code as a board member. Conscience as a person. ?Stay on the board and try to right things. ?Run like hell.
went thru a $800K restore/build as president of the local library recently - - am proud to say that the project completed with everyone on good terms, board members, builder, architects, library director - because of communication -
as a public body, all our meetings and deliberations and minutes are public, sounds like that's not the case with your daycare - in your case, I would go to at least a couple of the other board members in person and get a handle on where this came from - - sounds like your not the president, so I would go to him/her and talk frankly about your concerns, then hopefully with the presidents blessing have a sit down with the person who raised the concern and find out exactly why it exists -
sounds like you are forbidden to talk to Joe, but someone needs to - suggest it be the president - there is still time to make lemonade, and it's up to the leadership of the organization to make it happen -
"there's enough for everyone"
I think that you need to stay on the board and help to work this out. You can be a voice of calm reason that will see the organization through a difficult situation. Isn't this why you agreed to serve on the board in the first place.
We have worked with a number of non profit organizations in both designing and building projects. It is not uncommon for the boards to request for open bids for the projects despite a long standing relationship that we have had with them.
We could be bent out of shape by this and often the director or board member will try to apologetically explain to us the situation. We simply tell them that we understand the concern of the board to preserve their resources by seeking competitive bids and that we are interested in bidding.
Since we understand these organizations well and are usually very familiar with the projects (having been consulted about their feasibility and necessity)and since we are predisposed to giving the organizations a good price (The same way your contractor is with his daughter at the dc center), we are already at a competitive advantage.
The main difference in your situation is the lack of communication with the contractor. You can and should remedy this as soon as possible. If he is approached in an appropriate manner and have the situation sympathetically explained, he may help you out by being patient. Or he may not, but at least you will have made what amends you are capable of delivering. If the guy has been in business for any length of time, he has seen jobs fall through before for screwier reasons than this and he will accept it. He may not have the same relationship with the dc center as before, but it may be too late for that unless he is a man of great understanding.
AMEN!
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In general he owns the copyright for the drawings. That means you can't copy them. Beyond that it legally gets fuzzy, but morally you shouldn't shop them unless you explicitly paid him to produce the drawings for that purpose.