Contract Outline for Interior Design

One of the services that I provide to architect and designer clients is contracts customized for the needs of a firm or project. A well written contract is essential because it sets up the scope and timeline of a project, manages the expectations of the designer and the client and gives you the rights of the parties and the procedures they will follow when something goes wrong.

Contract outline for interiors projects

This article is republished from my architecture law blog at http://www.architecturelaw.net, where I write about legal issues that matter to architects. For more information on my architect and designer representation practice and how your business can benefit from personalized, affordable legal services designed for your industry, see my Architect and Designer Representation page.

Note: This is not a complete contract in any way, just a broad and rough outline. I wrote it for somebody in Massachusetts, and the requirements will vary by state, country and project, so please speak with an attorney in your area if you need a contract for design work.

A fellow lawyer recently asked me for an outline of a contract between a home owner and an interior designer. Here is what I wrote.

  1. General: Describe the project, the participants in the project and the parties to this particular contract. Include normal contract-for-services language, such as choice of law, arbitration, termination, modification, complete integration.
  2. Scope of Services: Describes generally the services that the designer will perform, and what services would be considered additional services. Additional services are work that is triggered by client requests or unforeseen circumstances and that is billed separately.
  3. Project Phases: Lists the project phases: Design phases such as pre-design, design development, contract drawings; construction supervision; project close-out; and there may be others depending on the complexity of the work. Includes the services to be performed during each phase – in more detail than the general Scope of Services section – and expected dates of completion. There should also be a discussion of the completion of each stage: presentation of the deliverables to the client, and how much time the client has to approve the work or request changes.
  4. Owner’s Responsibilities: What does the designer require of the owner? E.g., drawings to be provided, permit applications to be completed, access to the property, timely approval of design options.
  5. Compensation: What will the designer be paid, and at what times? If additional services are requested, what is the compensation?
  6. Delays: Describes the effects of delays. Delays caused by the client, by the designer, by the contractor, and by unforeseen circumstances will each be handled differently.
  7. Estimates: If the designer is providing cost estimates, at what points in the project cycle will they be given, and how reliable will they be? Language should be appropriate to your jurisdiction and give the limits of the designer’s liability for missed estimates if needed.
  8. Intellectual Property License: Make a clear statement of which party will own the intellectual property, including copyright in the drawings. By default, copyright ownership goes to the creator, which is usually the design firm. The non-rights-owning parties (e.g. the building owner) will need a license for use of the drawings to build the project. Include limitations on those licenses, such as limiting their use to this project only. If building information modeling (BIM) technology will be used, include a BIM protocol section that makes it clear whether the BIM model will be available to the client and contractors. If it will be, and this is your first time writing a contract with BIM provisions, be aware that this is potentially a very complex matter and ask somebody with knowledge in the field for help.
  9. Boilerplate”: When talking with other lawyers I tend to refer to this section as something like “the usual terms in a contract for services”, which doesn’t sound interesting, but this is not to be overlooked, because the terms that go in this section define the procedures to follow when something goes wrong. Terms here include choice of law, arbitration, termination, modification, integration, nonpayment and others. This is very dependent on the law of the particular state or jurisdiction, and a good lawyer in your area who drafts contracts will know what to include.

Are Buildings Copyrighted?

This article is republished from my architecture law blog at http://www.architecturelaw.net, where I write about legal issues that matter to architects. For more information on my architect and designer representation practice and how your business can benefit from personalized, affordable legal services designed for your industry, see my Architect and Designer Representation page.  

Are Buildings Copyrighted?

Most architects know that their drawings are protected by copyright. That’s sometimes the basis of contract sticking points (“Who owns the drawings?”) and the more tech-savvy know that limited copyright licenses can be used to limit the uses of BIM files by owners and contractors both as a method of retaining control over the process and as a limitation on the architect’s liability. What gets less press – and this is true even in law school copyright classes, where the topic is only mentioned but not explored – is that buildings themselves enjoy a form of copyright protection. Please note: This article applies in the US only. Other countries have different copyright laws. This is not legal advice, just a broad overview. If you need help with a legal question, contact a lawyer in your area.

History

Before the United States joined the Berne Convention (the international agreement on copyright protection, enacted in 1886 and joined by the US in 1988) there was no building copyright in the US except for purely ornamental works – structures that were sculpture only. The federal law that formally added copyright protection for other buildings was not enacted until 1990, and any buildings substantially completed or published before December 1, 1990, are not protected.

What Buildings Are Protected

Copyright protection now applies to buildings newer than December 1, 1990, that are capable of human occupation (e.g., houses, office buildings, even gazebos, but not monuments that lack roofs). Mobile structures – mobile homes, RVs, boats – are not protected by architectural works copyright, though they may have other forms of intellectual property protection. Modular structures assembled on-site can be protected.

What Features Are Protected

Copyright protection on buildings applies to those aspects of the design that are form, not function. In any design context, separating the two is difficult; if I ever write an extended article on the subject it will have to quote from Huxtable and Banham, feature interviews with theory professors and be unreadable by anybody without at least an M.Arch. The Congressional committee report references Michael Graves’ dichotomy between “internal” and “poetic” architectural languages. The internal is “determined by pragmatic, constructional, and technical requirements,” while the poetic is “responsive to issues external to the building, and incorporates the three-dimensional expression of the myths and rituals of society.” The report states that the intent of the law is protect the poetic language only. In real-world terms, therefore, design decisions made for practical reasons are less likely to result in copyright protection than those made for aesthetic, cultural or dare I say whimsical reasons. (Yes, I admit, I have made design decisions for purely whimsical reasons.) While “standard” features – e.g. a window from a catalog, a common wall assembly or a rectangular panel of fiber-cement board – are not copyrightable, creative combinations, configurations and combinations of otherwise standard items are.

What Is Infringement

A building can be accused of infringing another building’s copyright in the same ways that any other work can infringe, though most obvious and common would be actual copying or “substantial similarity” copying. The line between inspiration and copying can be fine and difficult to place. In one famous case – which never made it to court and so never produced a legal precedent – recent architecture school graduate Thomas Shine accused architect David Childs of making the New York Freedom Tower a “substantially similar” copy of Shine’s student project. Had the case gone to court, Shine would have had to prove that Childs’ design was so similar that copying should be inferred, and that Childs had access to Shine’s design. The latter part could be proven by showing that Childs was a member of the jury that evaluated Shine’s project and that Childs had commented on the project. Childs responded that the similar elements were really industry standard and that the design was informed by the site and other unique factors. The line between inspiration and copying is a distinction that would make many architects rightfully uncomfortable, because the practice of drawing on “precedent” studies is time-honored tradition in architecture, and perhaps this – together with the relative newness of architecture copyright – contributes to the relative scarcity of architectural copyright disputes, compared with more litigious fields such as software and music.

What Else Should I Know?

Too much to write here! It took me three law school classes and two co-op placements in the field to get a handle on copyright law. I’ll write more along these lines in upcoming posts continuing my discussion of BIM and the law and maybe one relating the recent Oracle v. Google case to architecture copyrights, but if you have any questions please email me at Andrew@AndrewLynnLaw.com.