AIA Provisions May Provide Architects With A Cause Of Action for Copyright Infringement Against Contractors.

Sep 29, 2017

Ohio court rules that AIA B101-2007 gives architects almost absolute control over their plans and specifications.

Contractors are aware that the American Institute of Architects (AIA) documents provide architects with significant contractual advantages in their relationships with both owners and contractors.

A recent case ruling by the Northern District Court of Ohio confirms this.

An article by the Babst Callard law firm reports that the Ohio court has made a preliminary ruling “that a contractor and its subcontractors may have committed copyright infringement by continuing work after the architect terminated the nonexclusive license to use the architect’s instruments of service (“IOS”).

Eberhard Architects LLC entered into an agreement with Lifecare Hospice to provide “architectural services” for the construction of a hospice inpatient facility.

The parties entered into a contract using AIA B101-2007. This Agreement gave Lifecare a nonexclusive license to use the architect’s IOS (plans and specifications) in return for “substantially perform[ing] its obligations, including prompt payment of all sums due, under the Agreement.” The contract also provided contractors and subcontractors with a nonexclusive license to use the IOS unless Eberhard terminated the Agreement for cause.

“Lifecare later breached the Agreement by failing to make required payments and Eberhard terminated the Agreement” and filed suit against Lifecare. It is unclear whether the contractor and its subs knew of Lifecare’s default on its payments. In any event, Eberhard alleged in its suit that the builders continued work on the project using the architect’s plans and specs after the contract between the architect and the owner was terminated.

The Court ruled that the nonexclusive license ended in its entirety when Eberhard terminated the contract. It “denied the Contractor Defendant’s motion to dismiss and allowed Eberhard to proceed with its copyright infringement claims against the Contractor Defendants.”

Based upon this decision, the authors recommend that contractors and subcontractors include language in their contracts with owners that allow “them to suspend work (or even terminate the contract) if the architect terminates the design agreement and questions arise as to the validity of the license protecting the architect’s IOS.”

Source—

AIA B101-2007 SUPPORTS ARCHITECT’S COPYRIGHT INFRINGEMENT CLAIM AGAINST CONTRACTOR, SUBCONTRACTORS, Babst Calland, Clements and Zomnir, P.C., Construction Law Blog, Feb. 3, 2017.