Discussion:
What is the name of your state? Wisconsin
We recently went to a builder to have home plans designed. He hired a designer to draw up the plans. I paid him approx. $1700 for those plans which had specific ideas from myself incorporated into them. He then paid the designer a portion of that money (approx. $1200).
I do not wish to use this builder for building my home. But the plans now have a copyright with his business name on it. He told me that I will have to pay him a $3,000 licensing fee to use those plans, if I do not use him as my builder.
I've spoken to the designer who actually drew up the plans. She said if she incorporates a 20% change to the plans, we could have new plans with copy rights to.
I do not want to pay the builder any more money. What is recommended?
Answer:
What is the name of your state? Wisconsin
We recently went to a builder to have home plans designed. He hired a designer to draw up the plans. I paid him approx. $1700 for those plans which had specific ideas from myself incorporated into them. He then paid the designer a portion of that money (approx. $1200).
I do not wish to use this builder for building my home. But the plans now have a copyright with his business name on it. He told me that I will have to pay him a $3,000 licensing fee to use those plans, if I do not use him as my builder.
I've spoken to the designer who actually drew up the plans. She said if she incorporates a 20% change to the plans, we could have new plans with copy rights to.
I do not want to pay the builder any more money. What is recommended? Either pay the builder the license fee, or hire your own architect and start over. The "20% change" is nonsense -- even if a 20% change would be sufficient to create a new copryightable work, the work would be a "derivative work," and without permission from the original copyright owner, you or the designer are not entitled to create a derivative work. So you'll have to get a license from the builder either way, or face a copyright infringement lawsuit.
And if you want to "own" the copyright to the plans to your house, you'll need to negotiate that up front and get it in writing. The rule in copyright law is that the "creator" of the work owns the copyright to the work, even if the work was commissioned and paid for by you or someone else. There are a few exceptions to this rule, but none apply in the situation you are describing.
So, you could either pay the builder for a license, go with the original designer and get a "20% changed" design (and risk a copyright inifringement suit), or go with another architect or designer.
The one thing that could change this analysis is if you had some sort of written agreement that the builder would furnish you with a copy of the plans after they were drawn up -- it would seem you have a right to something for your $1700 -- but then again, without a written contract, the builder could just claim that those were his expenses in preparing a custom design for you, and that's what you paid for. If you do have a contract specifying that you should end up with a copy of the plans, and he won't give them to you, you could at least sue him in small claims court for the $1700 you are out.
Answer:
State: Wisconsin
I have a written copy of a form titled "Architectural Design Deposit". The first line reads: "(Our Names), also known as "Purchaser" has deposited a check in the amount of $1,000, which is referred to as the "architectural deposit", with (Builder name), also known as "Builder" for the purpose of designing a floor plan. ..." It goes on about $500 non-refundable deposit for the builder, and additional charges will be invoiced according to the designer fees.
Doesn't that mean we should be able to build our house from the plan we paid for? Why would we purchase a design if we can't build from it?
Answer:
State: Wisconsin
I have a written copy of a form titled "Architectural Design Deposit". The first line reads: "(Our Names), also known as "Purchaser" has deposited a check in the amount of $1,000, which is referred to as the "architectural deposit", with (Builder name), also known as "Builder" for the purpose of designing a floor plan. ..." It goes on about $500 non-refundable deposit for the builder, and additional charges will be invoiced according to the designer fees.
Doesn't that mean we should be able to build our house from the plan we paid for? Why would we purchase a design if we can't build from it? Without reading the entire form, it's hard to say exactly what rights, if any, you might have. As far as purchasing a design, you said in your first post that the idea was that you would have this particular builder construct the house for you -- in that case, it sounds like the plans are simply part of the overall contract for building the house.
You could certainly take the contract down to a local attorney who can read the contract and then advise you accordingly.
Answer:
It looks like I will have to consult an attorney. When we first met the builder, he told us verbally that we could just do the plans with him if we wanted. We never signed anything stating he was going to be our builder. We had told him we were thinking of doing the home ourselves, being our own general contractor. He never mentioned anything about a licensing fee if we decided not to use him as a builder.
Thanks for your advice. It is much appreciated.