Gravitas is a Custom Home design company. That’s what we do, or at least, that’s a majority of what we do. One of the immensely satisfying aspects of our job, is to work with a family, tease out their wants and needs in a new home, balance those needs with the reality of their budget, site constraints, or Home Owners Association, and arrive at a unique solution for that particular family. Sometimes reinventing the wheel isn’t always necessary. We might have worked out a particularly successful kitchen arrangement in a previous home. Or maybe they found us through our web site, and one of our homes caught their eye. They want our “Sages”, plan, with some modifications. This happens all of the time, and that’s what those plans are there for, to inspire our clients, or prospective clients.
Sometimes, though, we meet with a couple, and in their scrap book for their dream home they have found a plan from an architect, or building company that they just love. They want “That” home, with some modifications. That’s when we have the discussion about intellectual property rights. We are in the creation business. So is our competition. US copyright law has given everyone a tool with which to protect their investment in time, and secure the right to use a design, work of art, book, or any unique published creation. We go through great lengths respecting the copyright that others have over their work. We’ve lost projects, because we have told our prospective clients that we can’t copy someone else’s design. We either need to purchase the right to use it, or come up with something new.
This is where a lot of the commentary in the industry lies. How much do you need to change a plan to make it unique, or at least to not infringe on the copyright holder? Let me preface this, and everything else before, and after with a disclaimer. I am not a lawyer. I don’t pretend to be one, nor do I want to be one. I am just a person that has had to work with intellectual property rights since I first started down the architecture path many years ago. The words in this entry are purely my own opinion, and you should seek the counsel of someone versed in your specific needs, as necessary. .
The rule of thumb in the industry that I was taught was that it’s acceptable to use another persons idea, as long as I changed the design by 17%.. I think this is rather comical. What constitutes 17%? I certainly don’t know if moving a bathroom, and enlarging the floor plan is adequate. I can’t track 17% changes to something, and if we were concerned about just meeting that number, we would not be doing our clients any justice. If you think you so close that you need to know what 17% is, you are way too close.
We have a program called “Plan of the Month”. This is where we take one of our past projects and offer it as a “standard” plan. These are our unique creations based on specific client parameters, so we may use them in any manner we see fit. We have outlined what rights we have reserved for Gravitas in the contract with our clients, as well as on our title block, so all parties are aware of what is happening.
Recently we issued out one of our plans in this manner. Later, after reviewing an issue of Log Home Living, we noticed that there was a plan very similar to one we had created. Immediately, we went to our files, to see what had happened. As a general rule, the first thing we do is make sure that we didn’t step on any toes, and take something that wasn’t ours. We always respect where an idea comes from in the design process, but you can’t always control where a client is inspired. It turns out that there were some plan sketches in the file that the owner provided, and they looked too close to the published plan for comfort. We didn’t infringe on copyright with our process, but the owner brought something into the system that wasn’t acceptable and put us in a predicament. We notified the company that had published the plan, and let them know we had just become aware of the problem, and had removed it from use in our plan book. Luckily we are on good terms with them, and they could see we took the necessary steps to stop the infringement that had been caused.
The courts use a determination of “substantial similarity.”1) when figuring out if there is an infringement case. This is a subjective determination but that is the nature of design. It comes down to if an ordinary observer, after discounting disparities in the design, would find the two designs to be substantially similar2). For us, it comes down to a gut check; if we feel two designs look close to each other, they are, and we address the problem.
We work with contractors or log, timber, or modular manufacturers that have stock plans. They often wish to have their plan used with a prospective client, but with some changes. In this instance, that company is the copyright holder, and so it works out well. Where there is a problem, is when a client brings in a plan from a log home manufacturer (for instance), and they want to go elsewhere for their log materials but use that plan. We have a simple answer. Either license the right to use the plan from the original creator, or let’s start from scratch.
Going through our design process and creating a unique design for the specific needs of a client ends up with a home that is better tailored to the individual. We say that you shouldn’t modify your living habits to match a particular stock plan, but that you should modify your building design to match your particular living habits. A fully custom home is not always in the needs of our clients though. These are times when a stock plan would be useful. Some copyright holders offer their plans for use on a licensing basis for a small fee. This would allow you to use the plan as a template to make your changes. At Gravitas we currently license our plans for $.25/SF. We have relationships with many contractors, developers and manufactures and they highlight our plans on their web sites as “The Gravitas Series”, or in some other manner acknowledging the source of the material. This allows them to show our plans and then license them for use with individual clients if they want to use their own in-house designers without any copyright infringement.
MarkWagner<>Gravitas
- Howard v. Sterchi, 974 F.2d 1272, 1276 (11th Cir. 1992 [↩]
- Shine, 382 F. Supp. 2d at 614 (quoting Folio Impressions, Inc. v. Byer Cal., 937 F.2d 759, 765 (2d Cir. 1991 [↩]
