Why Copying Designs Could Cost You Your License

On a project where an architect copies another’s drawings without permission, detailing problems create leaks and fire hazards. Can an architect be liable for defects stemming from plagiarized plans?

You’ll learn why copying someone else’s designs spells trouble, how skimpy reviews lead to lawsuits, and why ethics are your best defense.

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Chapters

• 0:00 Cold Open
• 0:28 Introduction
• 2:05 Story Begins
• 17:11 Lessons
• 19:04 Credits And Thanks

Transcript

Imitation—often called the sincerest form of flattery—can sometimes produce serious and unexpected consequences. Take for instance, the following story, in which an Architect is once again blamed for not noticing glaring errors during site visits that she wasn’t contracted to make in the first place. The result is damage to health, happiness, financial wellbeing, and civilized behaviour. We call this story “COPYRIGHT AND COPY WRONG.”

The Developer Leo Lanify, CEO of Lanify Holdings Inc., had seen a medical building in Thunder Bay that he very much admired. It occurred to him that if he were to build a medium-sized clinic next to the regional hospital in Clunton, the town where he lived—especially if it had a similar appearance to the Thunder Bay building—it might prove to be a good solid investment. On further reflection, he asked himself, “Why build something similar? Why not build something identical?”

To accomplish this, the logical—and ethical—approach would be to hire the Architect of the first building to design his new building. This would certainly guarantee the most successful result with the least fuss. But for reasons of economy, he decided instead to find a copy of the Thunder Bay construction drawings and hire local Architect Cathleen O’Rafferty to simply copy them, which is what he did, assuring her that he had obtained the original architect’s authority to do so. The untruthfulness of this statement was soon revealed, but there are conflicting accounts of how he actually acquired the drawings.

O’Rafferty copied the drawings, as instructed, making the necessary changes to the small-scale drawings, but leaving the large-scale details unaltered, and affixed her seal in order to obtain a building permit. Thereafter, since her fees were extremely modest, her site visits were brief and infrequent. Every month or so, Lanify would ask her to show up, take a quick look around, and to sign off on the valuation for the lender, which she did.

By the time the project was completed, the original Architect had learned about the forgery. He was personally flattered by the attempt at imitation, but professionally offended. He sued Lanify for breach of copyright and obtained a small settlement along with an apology.

And that’s where the story really begins. This unusual case doesn’t revolve around the design and construction of a building, but around the fiasco that followed, and the Architect’s involvement in it.

Lanify’s speculation that tenants for his new clinic would be easy to find proved to be unfounded. He defaulted on his mortgage payments and his lender Walford Bridge Financing, foreclosed.

Immediately, the new owners had one of their property inspectors look at their latest asset and evaluate its true worth. The Inspector found that the building was not a great acquisition. It lacked proper fire and smoke separations, had a curtain wall envelope that was flawed, and a roof that leaked unsparingly. The cost of necessary remedial work looked to be in the order of $3 million dollars. When the various costs and revenue losses were added, the total came to over $4 million dollars.

Naturally, they commenced a lawsuit against the Architect who had created this defective albatross.

In her meeting with the Claims Specialist, O’Rafferty, the Architect, presented as a soft-spoken and vulnerable individual. She had been devastated by the breach of copyright suit, and it had taken a toll on her self-confidence. She tended to study her shoes intently when answering questions.

She explained that she couldn’t take responsibility or blame for the building details; they were exactly as shown on the original architect’s drawings, and therefore the weatherproofing and fire-safety problems were not her fault, but the fault of the original Architects. She was an experienced practitioner, but all of that experience had come from designing farm buildings and small homes. She had never designed a commercial building before. For this project, she had relied entirely upon the trustworthiness of the Thunder Bay Architects’ detail drawings.

On hearing this argument, The Claims Specialist was unsure of how to respond. He gathered his thoughts and gently pointed out the problem that the legal context presented. There was no hope of third-partying the Thunder Bay Architects to face the music for their alleged mistakes, when the use of their details had been without their permission and constituted an admitted breach of copyright. Furthermore, according to the record, O’Rafferty had reviewed the construction herself, which meant that she had failed to notice— or comment on—the leaky curtain wall, the wonky roof and the missing fire protection measures. 

We felt it best to try and mediate the dispute, but the plaintiffs rejected the idea. We were headed for a court trial, and we didn’t like the odds.

Before the trial date, discoveries were held in a board room made available by the local Chamber of Commerce.

The Plaintiff began their presentation by producing an engineer’s report upon which their claim was based. This report outlined the various building problems, focusing most critically on the Architect’s poor powers of observation, her faulty detailing, and her insufficient knowledge and application of the Building Code.

Pro-Demnity had hired their own expert to critique the plaintiff’s report. Our expert was an Architect who specialized in Code matters and had years of experience in both government business and private practice. She took a totally different view of the fire separation issues, pointing out that the plaintiff’s expert had referred to the wrong Code—in fact, an obsolete Code—and had compounded his error by misreading it, so that most of his fire-related allegations were false.

This was a victory for us, but in the war of expert versus expert, there are many battles to be fought.

The Township, of course, agreed with our expert, but they took the position that they were a very small department and lacked the in-house expertise to review commercial buildings. Although they were obliged to be as rigorous as any major city, they had no specific policies when it came to inspections and approvals. Furthermore, their building inspector was actually a salesperson at the Village Hardware Store and worked for the Township only part-time. 

This was admittedly not a strong defence position, but everyone was aware of these things, and knew the Township building department didn’t get involved with complex buildings. In fact, except for the hospital itself, which had been built 25 years ago, this was the first complicated building proposal anyone had ever encountered. In other words, it was accepted that the Township would rely on Architects and Engineers for complex matters, and not their building inspector—unless hardware fittings and fastenings were involved, in which case he was the go-to expert.

Kelsey Rogers, the General Contractor, was an engaging, chain-smoking, rustic individual, with no assets and minimal insurance. His frank analysis of the whole matter was that the lender had taken a bath and was just lashing out. City people sometimes do that. To him, it was all a “crock.” He had not appointed counsel and had no plans to submit a defence.

The discoveries dragged on at a snail’s pace. The empty building was gradually filling up with tenants, so the urgency had evaporated, and the plaintiff seemed to have lost interest in reaching a resolution.

But the circumstances were changing—and not for the better. The Architect, had developed a serious medical condition, leaving her physically and financially incapacitated. Walford Bridge Financing had changed hands and the new gung-ho management, keen to tie up loose ends after two years of inactivity, had decided to press ahead with the case, at full speed.

We would have to dust off the file right away, and proceed without the participation of our policyholder and architect Cathleen O’Rafferty, who was not only ill and impoverished, she was now also deeply depressed. We had our work cut out for us.

The matter was put down for trial and, as luck would have it, was selected to be “fast tracked” in the court process, meaning that the years of idle anticipation were at an abrupt end.

The plaintiff could not be persuaded to mediate. They had already expended more than a million dollars on experts and lawyers, and they were looking to recover that, plus interest. They wanted and expected total victory.

After several confrontational telephone calls, both parties with a stake in the outcome—the financiers and the Architect, or rather Pro-Demnity— mutually agreed to move the matter from the courts to arbitration—speeding up the resolution process even further. The court date was erased and replaced in our calendars by an arbitration date.

Both sides had already exchanged expert reports. These were submitted, along with our written arguments to the arbitrator, a retired Appeals Court justice.

Pro-Demnity’s expert had already demolished the plaintiff’s expert report, which was based on fundamental misreading of the Code. But in addition to that, this expert was now espousing the well-worn opinion that the Architect’s “standard of care” should be the same for every project, regardless of circumstances or contractual agreements. 

With arbitration due to start in a week, and a deposit having been made on costs and arbitrator’s fees, the plaintiff’s counsel called the defence counsel, out of the blue, “just to talk.”

We often see cold feet on the eve of trial—or binding arbitration. It’s a common phenomenon, and it’s not just for the weaker side, since no one can predict how a case might be resolved. 

In this instance, it looked like the gung-ho Walford Bridge management representative had finally stopped to take a realistic look at his firm’s position. Their expert had slipped up, so they had probably consulted a third party, who had possibly pointed out that the OAA expert was the “real expert,” and that the alleged fire code violations, which they had spent over a million dollars to fix, were not, and never had been, design errors. If the violations had actually existed, which was doubtful, they were the result of shoddy workmanship and the fault of the Contractor, whose work was not reviewed—or expected to be reviewed—by the Architect.

Plaintiff’s counsel made an offer to settle for $500,000.

We had to admit to ourselves that there were errors in the curtainwall design and the roof details were substandard. It didn’t matter who was responsible for the errors; they were shown on the Architect’s drawings. These errors had necessitated re-roofing the entire building after only two years of service. Plaintiff’s counsel suggested they were prepared to settle for $300,000. After careful thought, we offered $75,000. It was finally settled for $150,000.

Although we had a strong case, it was never a slam-dunk, and as the various stories concerning the unsavoury details surrounding the misappropriation of the original architectural drawings came to light, it was prudent to wrap up the matter, sooner rather than later. All in all, it was a reasonable if not a stellar result.

In a nutshell, a Finance Company had foreclosed on a shoddy and unoriginal building built by a Developer who had skimped on Consultants and lacked the assets to maintain his holdings in a soft market. They had then made the classic mistake of charging ahead with heroic remedies for minor problems, expecting to recover the costs from lawsuits. In this case, the Architect’s insurer was the only pocket to reach into, and the insurance available was the legislated mandatory minimum: $250,000. 

To compound their misery, the financiers had turned down a purchase offer—before any work was undertaken or any costs absorbed—which would have resulted in only a $200,000 loss. Their actual costs, when the dust had settled, were probably close to $2 million dollars.

A few weeks after the matter was completed—cheques sent and documents signed—O’Rafferty, whose health had fortunately improved, wrote to the Pro-Demnity Claims Specialist, expressing her profound unhappiness at the result. In her opinion, if she had been able to have her day in court, she could have explained it all away. What’s more, her $2,000 deductible was punitive and far too much to expect her to pay, given the circumstances of the case.

Pro-Demnity prides itself on responding to all correspondence from policyholders. The Claims Specialist is still trying to come up with a reply to this one.

Evidently, the Architect failed to gain any wisdom at all from this episode, but fortunately, there are valuable lessons that the rest of us can learn.

Lesson No. 1: Do the right thing. In this case, the Architect could have avoided the embarrassing charge of plagiarism and saved her Client the cost of a settlement by simply making a phone call to the designers of the building that she had copied.

Lesson No. 2: Where massive exterior wall remedies are involved, be extremely wary of “pressing on regardless,” in the belief that somebody else will pay in the end. In this case, the Architect was spared catastrophe, and the Plaintiff’s shareholders ended up as the losers.

Lesson No. 3: Plagiarizing another architect’s work may also lead to a charge of professional misconduct by the aggrieved fellow architect, a case which would have to be investigated by the Regulator, and could likely lead to losing one’s Certificate of Practice and license. It’s always best to create a design that is truly one’s own.