Project Management: Instruments of Service

  • 31 March, 2020

A client comes to an architect asking for his drawings, models, and everything else that he has created to design a building. The client's justification is that they paid for those materials, so they should rightfully be theirs.

The materials used to create the design and development of a building project are not owned outright by the client. This is a common misconception because those materials are classified as instruments of service. What is necessary in understanding the concept of instruments of service is what the architect provides-and that is a service. Although architects design buildings, they do not provide the product of the building but rather the service of designing the building. The instruments of service are a part of providing that service, not a product.

Per the agreements and contracts between the architect and the owner, the owner is given the right to use the instruments of service for their project at a certain location within a certain timeframe. There are instances when the contracts may be amended to be able to use these instruments of service as derivative works-commonly for developments-but that necessitates an agreed-upon change to the formal contract through negotiation.

The risk the architect runs in surrendering the instruments of service could be personal or professional. It could be personal if the architect is not being compensated for the derivative works should the client build multiple versions of the design. The professional liability is presented when the derivative works are built-built to substandard conditions (especially if the architect is not involved), does not follow the regulations of the local AHJ (authority having jurisdiction), and is not designed for specific considerations like a building designed within an area of high earthquake activity. These reasons could have serious consequences for the architect.

Federal copyright law covers not only the instruments of service but also the building itself from being copied. This verbiage is also included in the contract between owner and contractor to ensure that the contractor is also aware of this provision.

That is not to say that the instruments of service are not released. As noted above, often for development projects where repetition is necessary as part of the business model, instruments of service are issued for replicating a model project. For the architect, however, this type of situation should be compensated fairly and should be addressed within the contracts. This situation should necessitate the acknowledgment of this repetition and legally, how to cover this instance in regard to the responsibility of the architect.

Transfer agreements are also issued to outline the responsibilities of the owner and the architect in the event of transfer.

In all, it is imperative that the architect understands what constitutes an instrument of service and its role in regard to the services the architect provides. It is not a right of ownership by the client but can be an opportunity for developing a project further with the client without assuming liability.

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