Architectural designer plans - can I use them

lucylou32

Following on from my last post, after 19 months I'm 2 weeks away from approved to start our extension !!!

Due to the delay caused by the architectual designer (some examples: he submitted a planning application in January but forgot to include the plans, they wrote to him twice, but he didn't provide them till April - he said he'd submit a non-material amendment application end May but didn't till July) and additional issues... We've decided to not pay his final bill and instead, as for a discount for the bad service and bad advice etc. We're hoping the discount will at the minimum match this last bill, but we're actually trying for more. So far, he's refused and said that if we don't pay this last bill, we can't use his drawings.

I'm looking for advice, if we have cause for complaint and are arguing his bill, are we allowed to use the final drawing when building work starts? Or do we have to complete the complaints procedure/ take him to the small claims court if necessary etc before we can use his design?

Thank you

lucylou32

In addition, he's advising we need a new manhole inspection chamber (the kitchen sick is moving) he's refusing to ask Soutgern Water for permission until the bill is paid. But our builder says we can't need permission for that?

System

Remind me again, is he a registered architect and do you have a formal appointment in place with him?

The drawings to date will (should) have a note on them stating their purpose - i.e. they should say they are an issue for building regs or planning etc and expressly note they are not for construction.
Non-payment of the bill means you are in breach of contract and have no "ownership" of the drawings - if there is a proper appointment in place it should detail the course of dispute resolution. In the appointment it will normally say that the bill should be paid on time and then the dispute settled but I can fully understand why you have withheld payment - it seems the guy has an absolute brass neck!

teneighty

I thought we established that your "architect" was an unqualified cretin? Begs the question why you would want to use his drawings.

I fail to see how he can stop you using the drawings. More fool him for releasing the drawings before he had received payment. He does not "own the design" unless you have entered into some bizarre contract where he retains all intellectual and image rights.

I suppose he could get you for breach of copyright if you copied them but how would he find out?

If he is not happy he will have to pursue you for non-payment in the usual legal channels.

lucylou32

No, turns out he's not a registered architect, he's an architectural designer. I put in a complaint with the CIOB 4 month ago, but they don't seem interested.

Looking back, I can only see emails, invoices, but nothing (I don't think) that'd be classed as a formal appointment. We never signed a contract etc prior to him starting each stage, he'd ask permission to proceed.

Last year, we were told by the planning office we weren't allowed to have the utility at the front of the new extension, so we put in a request to have it at the back, which was approved. However, Southern Water wouldn't allow it, due to drain locations. So, in January, we were all set to go for the non-material amendment and remove the utility all together. However, the architectural designer said, let's try for approval at the front, as I think we can get it now (implying he'd spoken to them and because of the Southern Water issue, they'd be willing to reconsider). We agreed for him to go ahead. It was rejected, I then spoke to the planning office who said: As per last year, there was absolutely no way it would ever be approved and we had wasted 5 months of our time trying. This is the invoice we're contesting, since a 5 minute call from him to them would have saved us from 5mths waiting and from receiving this invoice.

I've asked him twice for his complaints procedure, he's declined to provide them. I've also suggested dispute resolution, he says it's not needed, as we haven't disagreed on anything !!!!

Each invoice requests payment within 14 days.

The latest design says: Building regulation drawings. this drawing is the copyright of DCL Limited and may not be reproduced without written consent, this drawing is not to scale.

System

teneighty wrote: »

I

I fail to see how he can stop you using the drawings. More fool him for releasing the drawings before he had received payment. He does not "own the design" unless you have entered into some bizarre contract where he retains all intellectual and image rights.

I suppose he could get you for breach of copyright if you copied them but how would he find out?

If he is not happy he will have to pursue you for non-payment in the usual legal channels.

Architect’s drawings are subject to copyright law as they fall under the category of an artistic work. Copyright is a statutory right giving the owner certain exclusive rights in relation to his or her work. The main statute is the Copyright, Designs & Patents Act 1988. For a drawing to be protected by copyright law, there must be a qualifying person who creates a work that is original and tangible. It is not the idea of the design itself which is protected here, but the written or drawn record of the design.

The basic rule under copyright law is that the owner of the copyright in a drawing is the person who created the drawing — known as the author. The author can licence others to use it but, unless otherwise agreed, the copyright remains with the author. The licence to use a drawing can be subject to conditions, depending on the terms of an appointment. RIBA standard forms give the architect the chance to revoke a licence if fees are not paid, but some appointments will make the grant of the licence unconditional and irrevocable. You have said that your appointment states that the validity of your client’s licence to use your drawings is subject to prompt payment of your fees. If fees due have not been paid in accordance with the terms of your appointment, this licence may not be valid.

It is an infringement of copyright for another person to copy the work, distribute copies, lend or rent copyrighted work to another, or to adapt that work to create something else without the author’s permission — usually given in the form of a valid licence. It sounds like the client has passed your design to the new architect, who has used those designs as the basis of their work. This is therefore potentially an infringement of the copyright.

It is also a breach of copyright for a third party to deal with copies of your plans knowing or having reason to believe that such copies are an infringement of your copyright (ie they have been produced by someone in breach of copyright). If the new architect knows these designs have been supplied in breach of copyright, that would also be a breach — continuing to use them.

Whether the client or the new architect have breached the copyright of your plans and drawings will depend on two factors: whether they have directly or indirectly used your plan as the source of the copy, and whether the amount of the design copied is “substantial” — both in terms of quantity and quality.

A breach of your copyright may entitle you to damages, which are likely to be an amount that the court considers would be a reasonable licence fee for your drawings. You may also, potentially, be able to get other remedies such as an account of the profits made by your client from your drawings in breach of copyright, or an injunction preventing use of the copyrighted design, but these will depend on the particular facts and circumstances of the breach. Injunctions are usually only granted where damages are an insufficient remedy — where your loss cannot not be adequately compensated by money.

solicitors reply to question on copyright of drawings where fees are in dispute

teneighty

Nothing there that says the builder can't use them. Just that they cannot be copied or passed onto another architect to use them in a new design.

Having said that I am clearly not a copyright expert and I suspect the original moron "architect" isn't either. Do you seriously suggest this muppet is going to pursue the client over this? I suspect he is just using it as leverage to try and claw some money out of them.

I say call his bluff, crack on with the work using his rubbish plans and have your defense ready if he has the nerve to start legal proceedings.

lucylou32

Thank you the-r-sole, I appreciate you sharing that I'm trying to figure out the interpretation now. But I can confirm when we tried to appoint another architect in January we were told by them, we would have to start again, that they couldn't use his designs. Unfortunately they had a 5 mth wait list.

So, just to break it down...
Design 1. With utility at the back. We paid. It was approved. Then Soutgern Water said no.
Design 2. With utility at the front. Took 5 months to submit. We complained, he agreed to discount the end invoice by £300. Planning was rejected. We refused to pay as feel design was submitted under false pretences.
Design 3. Non material amendment. With utility removed. He advised a charge of £75 for this, then took 6 weeks to submit. We complained and he said he wouldn't charge.

Now, the dilemma is that we refused to pay for design 2. Without payment, he won't approve our use of design 3.

lucylou32

teneighty wrote: »

Nothing there that says the builder can't use them. Just that they cannot be copied or passed onto another architect to use them in a new design.

Having said that I am clearly not a copyright expert and I suspect the original moron "architect" isn't either. Do you seriously suggest this muppet is going to pursue the client over this? I suspect he is just using it as leverage to try and claw some money out of them.

I say call his bluff, crack on with the work using his rubbish plans and have your defense ready if he has the nerve to start legal proceedings.

I reckon this is what we'll end up doing. With a deep breath and fingers crossed 😂

System

teneighty wrote: »

Nothing there that says the builder can't use them. Just that they cannot be copied or passed onto another architect to use them in a new design.

Having said that I am clearly not a copyright expert and I suspect the original moron "architect" isn't either. Do you seriously suggest this muppet is going to pursue the client over this? I suspect he is just using it as leverage to try and claw some money out of them.

I say call his bluff, crack on with the work using his rubbish plans and have your defense ready if he has the nerve to start legal proceedings.

The basic rule under copyright law is that the owner of the copyright in a drawing is the person who created the drawing — known as the author. The author can licence others to use it but, unless otherwise agreed, the copyright remains with the author.

Surely it would count as using the drawing if you built from it?

I have pursued someone for nonpayment on these grounds before - a letter from a solicitor was enough to get my bill paid (including late payment fees) - It was quite a brutal start to being self employed!

lucylou32

the_r_sole wrote: »

Surely it would count as using the drawing if you built from it?

I have pursued someone for nonpayment on these grounds before - a letter from a solicitor was enough to get my bill paid (including late payment fees) - It was quite a brutal start to being self employed!

I'd be quite happy to pay the £75 for the final design we want to use. It's paying another £1,500 for the design that should never have been submitted that we have an issue with. Would the courts say we had to pay for it, even though the council say it's incomprehensible that it was submitted, after they'd already made it clear, it wouldn't be approved.