Posts tagged ‘The Industry’

This entry is part 3 of 2 in the series Copyright

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

  1. Howard v. Sterchi, 974 F.2d 1272, 1276 (11th Cir. 1992 []
  2. Shine, 382 F. Supp. 2d at 614 (quoting Folio Impressions, Inc. v. Byer Cal., 937 F.2d 759, 765 (2d Cir. 1991 []
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One of the many benefits of working with a 3D modeling program such as ArchiCAD, is the ability to see what the final product is going to look like.

All too often, the owner/contractor/Architect, doesn’t know exactly how something will look, until it is built in the field.  By that time, any modifications become expensive, or impossible.  Not only is the ability to communicate heightened through the use of 3D modeling, but the design is often better.  The computer is a wonderful tool for the designer.  The ease with which you can experiment, spin around the building or attachment, and explore the environment is worlds above what you can do on a flat piece of paper.

Since our founding in 2001, Gravitas has made it a commitment to use as many aspects of 3D computer aided design as possible.  Our clients not only see what they will be moving into, not only can the builder better understand the scope of the work ahead, and the log/timber supplier completely outline their materials that they will be providing, but everyone can point to the same image, and be on the same page throughout the entire process.  When all parts of the machine are working together, and have a common vision, it can only increase the quality of the end product, the enjoyment (if I can use that word) of the process, decrease the timelines and the costs, and result in a successful heirloom home.

The example below shows a timber frame that was supplied by Arrow-Wood Homes.  This residence was located outside of Jackson Hole, Wyoming, and is based upon our “Sages” plan. We’ve previously highlighted this particular home in our Blog. Visualization like this is one of the many services that we offer at Gravitas.

Enjoy,

>Mark

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WordPress Tags: Timber Frame,Visualization,ArchiCAD,Gravitas,Jackson Hole

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This entry is part 1 of 2 in the series Copyright

This is a continuation of the previous post on Copyrights & Design.  To see the beginning of this, please click here.

For willful copyright infringement, the infringer must have access to the original information.  Willful infringement carries much larger penalties.  Crying “fair use” is a defense in case you are being sued.  It is not a get out of jail free card, and if you are invoking it, that means you have already been sued.  Not a good thing.

Currently, applications for a copyright cost $45 for the filing.  Typically, if there are many items to be protected, such as photographs, or in our case, plans, they can be submitted in one application.  These are then called a collection.  The caveat is that they all have to be published on the same day.

Trademarks

A trademark is an indicator of source.  It shows where a product, design, image was created.  The Nike swoosh connotes who made the apparel.  Words, logos, sounds, colors, scents can all be trademarked.  For instance;

    • Sounds such as Intel’s 4 tone jingle identifies it as coming from Intel
    • UPS’s brown is highly identifiable on the road
    • There is scented embroidery thread that ties back to where the product is from

    A trademark has to be distinctive.  A person knows something came from somewhere.  If it represents a description of a product, and is not distinctive, it can not be trademarked.  Here is a “continuum of strength” regarding the ability to trademark something, from least enforceable to greatly enforceable:

    1. Generic Descriptive – “Orange Juice”
    2. Merely Descriptive – “Sweet”
    3. Suggestive Trademark – “Circuit City”
    4. Arbitrary Use – “Apple”
    5. Coined Terms – “Unisys”

    Phrases can also be trademarked.  “You’re Fired” indicates the source, in this case, Donald Trump.  If you can directly tie it back to where it came from, there is a possibility to trademark the material.  Your rights come from use of the item in question, not by registering it.  If it isn’t out there, you don’t have a case.  Senior users are presumed by the Trade Mark Office to be the first ones to file it.  They are considered the original user.  When you register a Trademark, the Trademark office then becomes the policeman.  That office will deny registration if there is a previous occurrence of it in their files.  Registration is usually geographic in scope.  You can register it with your local government, or if you go through the Federal office, it covers the entire nation.

    When the Trademark office is reviewing a new submittal, they look at likeliness of confusion.  Would a consumer be confused?

    1. How similar are the 2 trademarks, sights, sounds, meanings
    2. Is there a similarity in goods and services?

    Incorporation of a trademark with the secretary of state provides no protection.  It all comes down to how it is used.

    %Gravitas %Design This is a Federal Trademark.  It is registered with the Federal Government, and you have senior user rights.

    %Gravitas %Design You consider this to be a Trademark.  This is simply stated by the individual, or company.  No other action is necessary.  It’s a viewer beware notification not to use this without proper credit.

    This is a quick summation of what we learned at Stephen Nipper’s presentation last month.  This is by no means a legal representation of what Copyright, and Trademark is, or can do for you.  We find it necessary in our industry to have a basic understanding of what our rights are, and what we need to be watchful of.  I encourage you to contact a lawyer in your area if you have any further questions on this matter.

    >Mark

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    This entry is part 2 of 2 in the series Copyright

    One issue that we constantly run into while designing custom homes, is copyright.  We go to great lengths to respect the hard work individuals, and companies have invested in the creation of their designs.  We often have clients come to us with plans ripped from magazines and they say they want this kitchen, or this exterior.  This is where we have to inform them that we can’t just rip an idea off, or just change it 17%, and we’re okay.  It is our responsibility to educate the client on the law, and create an artistically, and intellectually unique design, that does not rely on some else’s work.

    I recently had the pleasure to attend a presentation by Boise based attorney Stephen Nipper presented by the local chapter of AIGA American Institute of Graphic Arts1.  While the specifics of the presentation had to do with Graphic Design and the like, the underlying law for it, and for architectural design is the same.  I will split this post into two.  Being a lawyer, we covered a lot of ground in the hour long presentation.  In summation, here is what I learned:

    When a client hires our company to design their home, what is purchased is basically the paper that the design is printed on, with the lines on the page.  That is, unless the “artistic content” is sold as defined in the contract with that client.  I will run down with you my understanding from Stephen Nipper.  In his preamble, he was quick to point out that this was not legal advice, and your particular circumstance may vary, but by and large, it is good information.

    Copyrights are created at the instance it is fixed in a tangible medium.  A mark or registration is not necessary.  If you do register the plan, you need to do it before it is published, or within 90 days after it appears in “print” (publishing electronically is considered the same as the printed page).  If the plan is registered, it enables you to seek higher statutory penalties, if an infringement occurs.  Damages range from $750-$30,000 (and $100,000 if it is a willful infringement).  You can also collect the attorneys fees associated with protecting the copyright.  If the plan is not registered, then you have to show what the loss/gain is.  This can be much more difficult to prove.  A registration creates a public record, and puts everyone on notice that you consider this to be proprietary information.  A registration also must occur before a suit is filed.

    The designer of a plan is by default the owner of it (except if the designer is an employee, then the company owns the copyright), unless it is changed by the contract, or is a “work for hire” situation.

    Copyright is referred to as a “bundle of sticks” situation, where each of the following rights exist independently, and need to be addressed separately.  Copyright includes:

    1. Derivative rights: manipulating the design in such a way as to create something new.
    2. Distribution rights: rights to print, sell, or otherwise distribute the plan
    3. Performance rights: right to perform the copyrighted material in public (on hold music)
    4. Display rights: right to display the copyrighted material in public (in a lobby, for instance)
    5. Right to Reproduce: duplication of the plan either singularly, or in multiple copies

    Ignorance of the fact there is a copyright in place is not insulation from lawsuit for infringement.  The largest thing to change though, is the magnitude of the penalties.  If it can be proven that there is ignorance to the existence of the the previous plan, then of course willful infringement is not on the table.  Also, there is a maximum of $200.00 per infringement, versus the $750-$30,000 penalty.  Also, just because you don’t make a profit on stealing someone else’s design, does not mean you can’t be sued for the damages that the copyright holder experiences.

    The idea that if a plan is changed X%, it no longer is copyrighten by the original designer, is a myth.  We often hear that if you change some designers plan by 17%, it’s okay to use.  I don’t know where that number came up, but I’ve heard it more than once.  The definition that is used by the court is if the two designs are “Strikingly Similar.”  That injects a degree of subjectiveness to the interpretation.  So care must be taken, if you use a plan as inspiration, that it is not only noticeably different, but that it is not strikingly similar.

    Typically, a copyright lasts for the length of the authors life, plus 70 years.  I am not sure how this works in regards to a company, or 25 years from publication, or 125 years from creation.

    I’ll finish up what I learned on the next post.  All in all, an educational experience.

    >Mark

    ~~Definitions~~
    1 American Institute of Graphic Arts
    Definitions

      Definitions By WP-Definitions!
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      A couple years ago we designed and provided the Construction Drawings for a home for a client of Beaver Creek Log Homes . We worked directly with the owner of Beaver Creek Log Homes,  Robbin Obomsawin. Robbin combines twenty years of log-joinery experience with her knowledge of conventional construction which made for a smooth process and abbreviated timelines.   We touched base with Robbin Obomsawin recently and she gave us permission to put an excerpt from one of her many books on our blog. This is valuable information for everyone in the log industry from experienced log home builders to log home owner builders. Enjoy.

      Top Ten Biggest Mistakes Made in Log Building

      1. Designing too much home for the budget — When custom building, it is very easy for things to spin out of control for the owner before he/she even has a clue that it is happening. “Live now and pay later” and “Well, I didn’t know”, doesn’t exempt you from the choices made. Overspending or insisting on having it all does not support your dream when you are suffocated by the stress of repaying the debt. Be prepared and informed of your project’s cost. Building a home is a big investment and it takes time to learn and absorb all the information.
      2. Not enough thought and planning before building starts — Any of you that have actually been through the process of building know that planning takes a lot of self evaluation, research and a focus. Detailed thought and planning about each phase of construction, including good construction plans, are critical to a successful project and the realization of your dream home.
      3. Installing the log shell or other natural framing members too close to the ground even when there is no snowfall — You must also consider the splash-back area created by the rain’s run-off from the roofline as it hits the ground and splashes back onto the house’s siding materials or log work. An exception can be made for a covered porch which has no walls, and therefore can be ground level. Just remember to have proper porch post installations.
      4. Building too short of a roof overhang — Oversized roof systems are more than ornamentation; they are a very important design feature of quality home construction. If your contractor does not have this information clearly marked on the construction plans or tries to build shorter roof overhangs to save cost, you will pay many times over in the long run. Log homes can withstand getting wet and actually thrive with humidity, but constant and repeated water saturation shortens the life of any home.
      5. The use of cheap quality materials – Low grade materials can stand out like a sore thumb in a quality log home, and devalues the appearance of the home overall.
      6. Choosing an inexperienced general contractor or log builder – Look for a contractor that appreciates or understands log homes with a solid background and experienced in general construction as well as loves his job.
      7. Purchasing the log shell or overall home’s bid solely based on price — Take time to understand the different quality and styles of log joinery. The least expensive bid is not always the best choice, whether in log work or general construction. It is often hard to know how to evaluate an overall bid, but with a good contractor, experience becomes very important. Many homeowners base their decisions solely on the bid amount and not on the content and supporting documents of the bid. I also often see homeowners who turn down well prepared, professional contracts because they are very long (and intimidating), often not understanding much of the content or do not agree with just a small part of the contract, opting for the inexperienced contractor with the one or two page contract that seems less threatening. In reality the short, loose ended contracts leaves the homeowner with an open translation of materials, content, construction methods, and builder vs. homeowners’ responsibilities. Also note that a one-sided contract or a contract you do not fully understand is also a hazard. Be sure to go over the contract with the builder in detail as well as having your attorney review the contract proposal before signing.
      8. Not allowing enough room for shrinkage in the wall systems — Never underestimate the power of shrinkage! Shrinkage and settlement is a natural process that occurs with time and is created as the content of the moisture in the logs drop. The design detail of shrinkage is not hard or complicated for an experienced carpenter to understand with proper detailed drawings. It only becomes difficult when ignored!
      9. Taking on a building project beyond your experience in construction — Without a good understanding of or experience in construction, the project can end in disaster and often cost much more than hiring out to a professional builder. Construction is much more complicated than it may appear. I understand the urge to build without practical experience, and with great embarrassment I can tell you that with our first log home built for ourselves over twenty years ago, we made every “green-horn” mistake that could be made. Even though I was dedicated to watching each and every Bob Vila’s program and read every book I could get my hands on about construction, it simply does not compare to hands-on, practical experience learned over time. I am not saying that you cannot take on a portion of the project, but unless you have a lot of time on hand in combination with experience, your home could end up like a circus in a blender.
      10. Drinking too much coffee and overworking on job sites. Stuff happens.

       

      Some valuable advice from Robbin Obomsawin of Beaver Creek Log Homes.

      Thanks for reading.

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      Additional Sustainable Links, credit due to the USGBC for assembling this exhaustive, continuously updated resource: www.USGBC.org

      Life Cycle Analysis & Costing

      Materials, Guides & Certification
      Media

      Product Certification & Testing
      Research Centers

      Residential Resources

      Sustainability/Miscellaneous

      Ecosystem

      Sustainability
      Urban Sustainability
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      We hope to provide you with another resource to track down information regarding sustainable design, and green building.  We have relied heavily on the USGBC for many of these www.USGBC.org.

      Codes and Standards

      Design Tools

      Design Resources

      Energy

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      I wanted to post a quick belated note about the Timber frame presence at Greenbuild in Boston last year. It’s old news with Greenbuild Phoenix now on the horizon but still relevant. It’s easy to forget with the loud and much publicized arguments against logging and deforestization that wood is indeed a very sustainable option for a building material. With sustainable harvesting practices and sensitive control measures our forests can provide us with a valuable resource generation after generation. Being ingrained in the log and timber industry I’ll admit that I was surprised to see both Riverbend Timber Framing and Hugh Lofting Timber Frame at Greenbuild 2008. The surprise was not that it was inappropriate, there are obvious reasons for their exposure there, it just caught me off guard to see something so familiar amidst the endless booths of porous asphalt and green roofs. I hope both of these companies had some beneficial exposure and leads from the conference. It looks like Riverbend Timber Framing will be at this Greenbuild 2009  in Phoenix and a quick look doesn’t show any log or timber frame competition. I would imagine some migration of these vendors to the West Coast Green expo which is in San Francisco this year. This expo, in my opinion is more geared to the residential market.

      A lot of people don’t know this but videos of some of the speakers at both expos are archived, a great way to catch up on some inspiring people.

      Greenbuild speakers 

      West Coast Green Speakers

       

      Greenbuild

      Westcoastgreen

       

      Check them out, try to attend, you are sure to learn a lot.

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      The following post offers a few points to think about if you’re considering building a log home.  A lot of people get overwhelmed with information at the beginning of this process.  I wrote this a few years ago to help break down the nuts and bolts of log homes. 

       

      When a family has decided that a log home structure is what they want to build, they first must ask themselves whether they want a rustic looking hand crafted house or a building that has been pre-manufactured with whatever “rustic” qualities included.  The main difference between the two is a hand crafted model is generally built by hand on another site, disassembled, and then reconstructed on the final site by a small crew of builders while the manufactured models are often designed, cut to specifications, and assembled into a kit before shipping out to a job site from one location, very often assembled by whatever contractor has been selected to construct the house and not a specialty crew. The key to manufactured log homes is the uniformity of the shape of the top and bottom (horizontal) surfaces.  Manufactured homes can be purchased several different ways, from walls only to a complete house with all doors, windows, and fixtures.

      After the decision of which type of construction to use, the job of building your dream log home is just beginning.  Several decisions now must be made, and a good place to start is to choose a species of the logs that you wish to use.  You might want to include factors such as appearance, decay resistance, insulation value, stability, and finally cost.  A close look at where you plan to build your cabin can have a dominating effect on the species you choose.  Insects may not be a concern in your area, but fungi and decay thrive in moist environments and a more expensive species may be necessary to combat these elements over something that you believe looks better. 

      As soon as a species has been selected, you must now decide how to join your logs together.  There are many variations of basically these four methods of construction, flat on flat, hand scribed, concave over round (Swedish cope) and tongue and groove.  How the corners are addressed must also be decided.  Here you can choose between saddle notch, dove tail, butt and pass, corner post, or an interlocking system.  In addition, a fastening system must be chosen to help keep the logs together and straighten them out in case they decide to bow or twist.  Most wall systems involve elements of the following – spike and lag bolts, thru bolts, timber pegs, and oly screws.  Also, a good system will help resist the external forces and stresses placed on the structure by wind, snow, and seismic activity.  If properly built according to local codes, any of these methods will be sufficient to build your structure.

      Once you have a structure built you must decide what type of wood preserver to apply.  This will depend on what climate you are in, the moisture content of the wood, orientation and exposure, pigmentation, and finally, personal preference.  You can apply water repellents, UV blockers, biocide agents and other preservatives.  The key to a successful staining and preservation of a log home is that you use something specifically designed for a log home.

      As you can see, there are many factors that are involved in choosing and building a log home.  One thing I have found is that the success of your log home building experience depends greatly on your builder.  A builder can make or break your project – a good builder can take bad product and make it look like a million bucks while a bad one can take a million dollar package and turn it into garbage.  If you take your time and research your contractor as much as you research your log provider, you shouldn’t have many problems.  Once these basic questions are answered, designing and building your dream home can be accomplished easily.  By asking yourself these questions ahead of time and doing a little investigating about your geographic area, you will help your designers and builders tremendously.  Good luck and happy stacking.

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