The Rights of an Architect's Instruments of Service

What rights does an Owner have to use the Architect’s Instruments of Service, otherwise known as the various forms of work product prepared by the architect, when the Project ends or the Architect’s services are terminated?

In B101™–2017, Standard Form of Agreement Between Owner and Architect, the Architect and the Architect’s consultants are deemed the authors and owners of their respective Instruments of Service, and they retain all common law and statutory rights, including copyright. The Owner receives a license to use the Instruments of Service solely and exclusively for constructing, using, maintaining, altering and adding to the Project. This license will only terminate if the Architect rightfully terminates the Agreement for cause due to the Owner’s default. In the absence of such a termination by the Architect, the Owner retains the license to use the Instruments of Service after completion of the Project or the Owner’s termination of the Agreement. If the Owner subsequently uses the Instruments of Services without retaining the author of the Instruments of Service, the Owner agrees to release and indemnify the Architect for such uses. If the Owner rightfully terminates the Agreement for cause, however, the Owner is not required to release and indemnify the Architect for its further use of the Instruments of Service. If the Owner terminates the Agreement for its convenience or the Architect terminates the Agreement due to the Owner’s suspension of the Project, B101 provides for the Owner to pay a licensing fee to the Architect for the Owner’s continued use of the Architect’s Instruments of Service.

All of the 2017 owner-architect agreements treat use of Instruments of Service in the same way as B101 with the exception of B105™–2017, Standard Short Form of Agreement Between Owner and Architect. In B105–2017, the Architect grants the Owner a limited license to use the Architect’s Instruments of Service solely as a point of reference for maintaining, altering and adding to the Project. The Owner, however, as a result of its continued use of the Architect’s Instruments of Service without retaining the Architect, must agree to indemnify the Architect for the Owner continued use of the Instruments of Service. B105 does not contain a provision for termination for the Owner’s convenience.

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