Intellectual Property Rights and Instruments of Service

Frequently on construction projects, design professionals such as architects and engineers are retained to invest substantial professional skill, time, and resources in creating drawings, specifications, calculations, models, and other documents. These materials are commonly known as “instruments of service” and are often mischaracterized as simple deliverables. However,  instruments of service embody design decisions, technical knowledge, original expression, and, increasingly, complex digital information.  

Determining who owns and who may use these materials can have significant legal and commercial consequences. An owner may need to engage a replacement architect or engineer to complete an unfinished project. A contractor may need access to design files to coordinate construction. A design firm may wish to reuse standard details or develop similar designs for other clients. Meanwhile, a dispute over fees, termination, or alleged professional negligence may place the parties’ respective rights in the instruments of service at the center of a larger controversy. 

These common questions are governed by a combination of federal intellectual-property law, state contract law, professional-practice requirements, and the terms of the applicable construction agreement. Instruments of service can, and often do, give rise to conflicts between these multiple distinct legal fields, and understanding the interplay and potential pitfalls when utilizing these instruments is paramount to prevent disputes before they arise.  

What are Instruments of Service? 

The term “instruments of service” is widely used in construction-industry agreements to describe the materials through which a design professional develops, communicates, and documents its professional work. 

Depending on the project and contract, instruments of service may include: 

• Architectural drawings, floor plans, elevations, sections, and details. 
• Engineering drawings, calculations, specifications, and technical reports. 
• Design studies, renderings, schedules, and supporting documentation. 
• Computer-aided design (CAD) files, BIM models, and associated digital information. 
• Survey information, models, analyses, and other project-specific design deliverables. 

The Contractual Framework 

The first step to successfully navigating use of instruments of service is to understand and secure the contractual terms necessary for your circumstance. The definitions in the contract should be examined carefully in each agreement. A contract may distinguish between final drawings, preliminary design materials, native electronic files, models, calculations, and information supplied by other project participants. It may also treat things such as software, proprietary design tools, and templates differently from project-specific deliverables. This distinction matters, as providing a client with a PDF drawing does not necessarily entitle the client to receive the underlying editable CAD file, or the design firm’s proprietary tools.  

Often times, an architect or engineer and its consultants retain ownership of their respective instruments of service, together with reserved rights under applicable law, including copyright. This rationale is commercial as well as legal. Professional fees generally compensate the architect or engineer for performing defined services, rather than purchasing unrestricted ownership of every design document and the ability to reuse it without limitation. Instead of transferring ownership, standard agreements commonly grant the owner a non-exclusive license to use the instruments of service for specified purposes associated with the project. 

Depending on the agreement, permitted uses may include constructing, repairing, or adding to the project. The exact scope of the license depends on the contract. Provisions governing project completion, subsequent alterations, termination, and replacement design professionals deserve particular attention. An owner seeking outright ownership of design documents or copyrights should negotiate an express transfer rather than assume that payment of professional fees automatically conveys those rights. 

Copyright Protection 

Federal copyright law protects original works of authorship fixed in a tangible medium of expression. Instruments of service may qualify for protection under more than one category of work, including Section 102(a)(5) (pictorial, graphic and sculptural works) and 102(a)(8) (architectural works).  

Accordingly, original architectural drawings, engineering illustrations, and other qualifying technical documents may receive copyright protection even when the underlying design is functional. This protection concerns the original expression contained in the drawings, rather than an unrestricted monopoly over the engineering method, building system, or other functional concept described. Protection may even extend to the overall form of a building and the arrangement and composition of spaces and elements. However, it does not extend to individual standard features or functional requirements merely because they appear in an architectural design. 

For engineers, the analysis requires particular care. Engineering drawings and original technical illustrations can be protected as graphic works, but an engineering system, process, structural solution, or functional method does not become copyrightable merely because it is documented in a drawing. 

It is important to note that copyright protection for instruments of service is meaningful, but it is not unlimited. Several principles are especially important in the context of construction projects. Section 102(b) of the Copyright Act excludes ideas, procedures, processes, systems, methods of operation, concepts, principles, and discoveries from copyright protection. A copyright in a drawing therefore does not ordinarily confer exclusive rights over the engineering method, structural principle, construction process, or functional solution depicted. 

Additionally, the merger doctrine may limit protection where an idea can be expressed in only a few ways. If functional requirements leave little meaningful expressive choice, copyright cannot be used to monopolize the limited available expressions. The related doctrine of scènes à faire excludes elements that are standard, customary, or practically inevitable in a particular setting. In building design, these principles may apply to conventional room arrangements, standard circulation routes, code-mandated features, structural necessities, and other elements dictated by the site, function, or applicable regulations. 

Who Owns the Copyright? 

Another pivotal question to consider when utilizing instruments of service is who owns the copyright for the deliverable. The starting point under federal law is that copyright initially belongs to the author, subject to statutory exceptions and valid transfers. In architectural and engineering practice, the identity of the author and copyright owner can be more complicated than the identity of the person or firm that sends the invoice. 

Under the work-made-for-hire doctrine, a work created by an employee within the scope of employment may be owned initially by the employer for copyright purposes. For independent contractors, the result is different. A commissioned work qualifies as a work made for hire only if it falls within one of the categories enumerated in section 101 of the Copyright Act and the parties expressly agree in a signed writing that it will be treated as a work made for hire. Architectural drawings and technical design documents do not automatically qualify as commissioned works made for hire simply because a client paid for them. The statutory requirements must be satisfied. 

Large projects frequently involve several contributors, including architects, civil engineers, structural engineers, mechanical and electrical engineers, landscape architects, and specialist consultants. The contracts should identify who owns each contributor’s work, what rights the lead designer receives, and whether the owner obtains the licenses needed to construct, maintain, modify, and complete the project. A general clause stating along the lines that “the architect owns the instruments of service” may not resolve every question concerning third-party materials or rights held by consultants.  

Case law and Recent Developments 

The unique nature of instruments of service, the multiple applicable statutes, and the interplay between competing legal requirements has resulted in inconsistent rulings and an ever-changing landscape in different jurisdictions. Several decisions illustrate how different courts distinguish protected design expression from functional requirements and contractual rights. 

The most significant recent development is a genuine split between the federal courts of appeals over the reach of the copyright “safe harbor” in 17 U.S.C. § 120(a). That provision says the copyright in a constructed architectural work does not include the right to prevent “pictures, paintings, photographs, or other pictorial representations of the work” if the building is ordinarily visible from a public place. 

Eighth Circuit — In Designworks Homes, Inc. v. Columbia House of Brokers Realty, Inc., 9 F.4th 803, 805–808 (8th Cir. 2021)), the court held that § 120(a) does not shield real estate companies and their agents who generate and publish floorplans of homes for sale. It read the catchall “other pictorial representations” as limited to images sharing a quality of artistic expression, meaning functional floorplans fall outside of it.  

Fifth Circuit — In Kipp Flores Architects, L.L.C. v. AMH Creekside Dev., L.L.C., 188 F.4th 826, 831 (5th Cir. 2026), the Fifth Circuit expressly rejected the Eighth Circuit’s approach, holding that § 120(a) “covers all pictorial representations whether created for artistic, functional, or mixed purposes.” It reasoned that the catchall takes its meaning from the common pictorial thread, not from the one arguably artistic item in the list. The court also held that § 120(a) limits only the “architectural work” copyright under § 102(a)(8) and not “pictorial, graphic, and sculptural” (PGS) copyright under § 102(a)(5).  

Separately, courts continue to apply a “thin” copyright analysis to routine floorplans. In Design Basics, LLC v. Signature Constr., Inc., 994 F.3d 879, 882–883 (7th Cir. 2021), the Seventh Circuit reaffirmed that copyright in suburban tract-home floor plans is thin under the aforementioned scenes-à-faire and merger doctrines, so “only a virtually identical plan infringes.” It articulated a two-step infringement test which expressly aligned with the Second and Ninth Circuits and is consistent with the First Circuit’s.  

These are only a few examples of the types of disputes that can arise whenever an instrument of service is not clearly and appropriately accounted for. Who owns an instrument of service and what they can be used for depends upon the contract and application of copyright law and jurisdictional elements. As such, parties should be cautious when drafting and negotiating design contracts or utilizing an instrument of service during or after a project. Clark Hill construction attorneys are available to assist parties with any issues related to project design work and instruments of services.