Where Credit is Due
Conflict can occur when an architect departs a firm but still wants to get credit for the design.
June 16, 2014
Shanghai Tower, in the city’s Pudong district, opens at the end of year. When Gensler won the competition in 2007 for the megatall skyscraper—the world’s second-highest at 2,073 feet—it beat the usual Cloud Club suspects: Foster + Partners, Kohn Pedersen Fox, and Skidmore, Owings & Merrill.
The disagreement also brings up the question of intellectual property with regard to the definition of “design” for a complex project—especially whether a team of collaborators should share the credit, or whether they even agree there is a “first among equals.” Architects' websites can heighten the ambiguities in the ways they list credit for a project's design. In addition, the media can mislead by abbreviating credits, since the press often singles out an individual “creator” to credit for the design.
Here we present three case studies reflecting different approaches to the problems of attributing design credit, with advice on potential ways for avoiding conflict given by Cheryl L. Davis, a lawyer with Menaker and Herrmann LLP in New York.
In 2011, Gensler filed a lawsuit alleging that Marshall Strabala, an architect with Gensler from 2006 to 2010, falsely stated he was the designer of the Shanghai Tower and other Gensler projects, including the Houston Ballet Center for Dance (2011). Strabala, who graduated from Harvard's Graduate School of Design in 1988, had worked for Skidmore, Owings & Merrill (SOM) for 19 years, designing projects including megatall buildings, when he was hired by Gensler to join its Houston office as the design director. In 2007, Gensler—which arguably had an impressive reputation for corporate office interiors but had not yet designed a building higher than the 54-story L.A. Live Tower in Los Angeles (RECORD, May 2012, page 156)—won the competition for the supertall Shanghai Tower. In doing so, it beat out Foster + Partners, Kohn Pedersen Fox, and SOM. Strabala began working on the Shanghai Tower but left Gensler in 2010 to open his own office, 2Define Architecture, in Chicago, Shanghai, and Seoul.
Strabala's new firm put Shanghai Tower on its website and on the Flickr website. Gensler's suit says the defendant “repeatedly and willfully misrepresented the true origin and source of certain architectural and design services, falsely claiming to be the designer of a number of projects that were, in fact, designed by Gensler.”
While the suit was dismissed the following year on procedural grounds, Gensler is appealing the case in a higher court. Adding to Strabala's woes, SOM decided to sue as well. The suit, filed in New York state in June 2011, alleged that Strabala had engaged in “copyright infringement, unfair competition, and false advertising.” Strabala, as associate partner at SOM, had been a studio head under Adrian Smith for Burj Khalifa in Dubai (2010) and the Nanjing Greenland Financial Center in China (2010), among other projects. The SOM suit was moved to Chicago, where it was settled out of court in December 2012. According to the agreement, neither party can talk about the case, but SOM's suit had contended that most of Strabala's work on Burj Khalifa, for example, “occurred in the construction-document phase” following design completion.
Oy, you don't want to be in Strabala's shoes. While Strabala has not actually lost the Gensler suit, he has spent a lot of time and money defending his right to claim credit. According to Gensler's managing principal, Dan Winey, “[the firm] does not comment on pending litigation,” but he states it is confident that “the U.S. Court of Appeals for the Seventh Circuit will agree with Gensler” that Strabala's claims “mislead clients and the public and violate federal unfair-competition and false-advertising laws.”
How could Strabala have avoided this conflict? Currently Gensler includes the Shanghai Tower on its website and makes no mention of Strabala, even as a past design director for the tower. Gensler's Winey states that “large and complex projects typically include multiple design directors under oversight of a design principal and managing principal. For the Shanghai Tower, Jun Xia and Dan Winey served those roles, respectively.” Regarding drawings, Gensler's website states, “Copyright 2014 Gensler. All rights reserved.” On his own website, Strabala makes no reference to Gensler for Shanghai Tower, giving as a credit “images © 2012 2Define Architecture.” His animated short of the Shanghai Tower depends on images and music to present the work, with no names, his or Gensler's.
Cheryl Davis Comments
First, a few words about the copyright law: copyright exists when a work is put in a tangible form, such as when a design is put down on paper. You don't have to register your work to have a copyright on it. (If you want to bring a lawsuit, that's another story.)
As a general matter, when you create a design, you own the copyright on that design—unless you're an employee and it's your job to create that work. The copyright for designs created by an employee of an architectural firm belongs to the firm (rather than the employee) under the principle of “work made for hire.” However, if you're a very senior employee, or not an employee at all (such as a partner), you may be able to negotiate as part of your agreement with the firm that you can own or at least continue to use particular designs, even after your departure from the firm. Of course, the firm would have to agree to such a provision.
The U.S. copyright law states that the owner of a copyrighted work has the exclusive right to copy the work or to create what are known as “derivative works” based upon the copyrighted work (for example, creating modifications of the work). Essentially, the owner has the right to control how its intellectual property is used.
Where architects and designers are concerned, the copyright law can prevent a former employee from using the firm's designs on a website or copying them to include in a personal portfolio, since only the copyright owner has the exclusive right to copy or use the design. Even if a firm does decide to allow a former employee to use the designs (for marketing purposes, for example), the question of how to credit the designer's involvement may (and often does) still remain.
The Strabala case (or, more accurately, cases) is an example of how far a credit dispute can go. It's usually wisest to attempt to settle these issues while hashing out the other aspects of an architect's departure from the firm. While the courts are still addressing the question of whether an architect claiming credit for work that belongs to another is a violation of the law against false designation of origin (which is separate from the copyright law), the AIA has already attempted to provide some guidance.
Even where there is no explicit agreement between the firm and the designer with respect to credit, Rule 4.201 of the AIA Code of Ethics provides that “Members shall not make misleading, deceptive, or false statements or claims about their professional qualifications, experience, or performance and shall accurately state the scope and nature of their responsibilities in connection with work for which they are claiming credit.” The AIA code goes on to state, “This rule is meant to prevent Members from claiming or implying credit for work which they did not do, misleading others, and denying other participants in a project their proper share of credit.”
Whichever way the Gensler case is decided, it has served to highlight an important issue for both architecture firms and their employees. It's only when these (and other) concerns are brought to people's attention that they can be addressed in advance and perhaps stave off litigation.
Let's look at a case that was resolved seemingly amicably and, more important, without lawsuits. When Adrian Smith left SOM in 2006, he and a former SOM colleague, Gordon Gill, started their own firm in Chicago. Smith, a design partner and then consulting design partner, had been at SOM for 39 years and was widely acknowledged to be the creative force behind the 2,717-foot-tall Burj Khalifa in Dubai, the tallest building in the world, completed in 2010. On the Smith Gill website, the buildings executed for SOM are included under “Work,” but in a special folder designated “Prior to Adrian Smith and Gordon Gill.” In all cases, SOM is credited as “Architect.”
SOM considers the AIA ethical standards to be sufficient guideposts. According to managing partner T. J. Gottesdiener, “Our policies are consistent with the AIA's ethical standards on this topic.” He also adds that the firm's “projects are all created by large teams made up of many talented individuals,” which might explain why the firm does not give individual credit for the specific projects on its website. As Gottesdiener explains, “SOM's approach to architecture has always been a collaborative model. Listing individual team members on our site would be at odds with this philosophy.” So if you go out on your own, take a tip from Gottesdiener: “If someone is leaving a firm and wants to promote themselves, the right thing to do is to talk with legal counsel at the firm and get a clear agreement about the parameters for describing any individual's role in a given project.” In addition, you should think twice about posting, without permission and copyright, a drawing you did for the previous firm. Gottesdiener reminds us that “SOM copyrights its renderings and other such work products, and credits photographers.” Ironically, journalists and historians seeking full listing of teams for the SOM projects Smith was involved with can turn to The Architecture of Adrian Smith, 1980–2006, SOM (2006).
Even if you have worked things out with your previous firm, Smith warns, “Based on the AIA Code of Ethics, there is an obligation for people leaving a firm and starting new offices to indicate accurately their roles at the previous one.” It is important to determine precise terminology about credits to preclude later conflict. “There is too much abuse by some architects who are deceptive with regard to proper attribution,” Smith says. “The lead firm should always get the credit.”
Cheryl Davis Comments
Smith and Gill seem to have gotten out in front of a potential credit dispute by reaching an agreement with their former employer and creating a credit that satisfied both parties. Both ownership of the designs and attribution of design credit appear to be addressed. They have taken their cue from the AIA Code of Ethics and taken care not to overstate or misstate their roles in connection with the designs.
Interlace and Wyly Theater
Rem Koolhaas's firm, Office of Metropolitan Architecture, based in Rotterdam, is a powerhouse of design, and noted for the talented progeny who have gone off on their own. Recently Architectural Record featured the OMA housing complex, Interlace, in Singapore (March 2014, page 90), and requested a credits listing from OMA, as well as from Ole Scheeren, who had been OMA's partner in charge and the lead designer for the project before opening his own office in 2010. The attribution for Interlace that RECORD received from OMA was straightforward: OMA. In the expanded credits, OMA listed Scheeren in his role (stated above). But the credit list RECORD received from Buro Ole Scheeren was different: “The Interlace by Ole Scheeren © OMA.” (This wording also appears on Scheeren's website.) When Buro Ole Scheeren gives a longer version of the credit, it reads, “Design Architect: Ole Scheeren/OMA, Beijing.” RECORD chose to go with just the OMA version, but for this article contacted both parties for statements about the credit differences. Representatives of both firms declined to comment.
The combined Ole Scheeren/OMA, Bejing credit reminded us of another OMA project—the Dee and Charles Wyly Theater in Dallas (February 2010, page 60). For this the credit reads “REX/OMA” in print and on both REX's and OMA's websites.
REX is the name that another former OMA partner, the American architect Joshua Prince-Ramus, gave the company in 2006, when he bought out Rem Koolhaas's 50 percent share of the New York office. His situation, however, was quite different from that of the usual departing designer or partner. According to Prince-Ramus, he owned 50 percent of OMA New York and was the office's sole principal. When he changed the name to REX, he says he went through all the credits with Koolhaas regarding attribution. “I own the intellectual property for Wyly,” he adds. “But Rem has complete license to publish it or use it for promotion, and we both must properly credit the work as REX/OMA, or, in the long version, “REX/OMA, Joshua Prince-Ramus (Partner in Charge) and Rem Koolhaas.” This obviously makes his situation quite different from the normal designer who leaves a firm. As Prince-Ramus says, “It's one of an owner naturally presenting his work, with proper attribution.”
Cheryl Davis Comments
The larger a firm is, the more likely that it will have employees who eventually go off on their own. In those situations, it becomes more pressing to address the question of credit as early as possible. This answer should be in writing. That's very important.
The distinction Prince-Ramus makes between owning and licensing intellectual property may come as a surprise to most designers. An architect can own the copyright on his or her designs while still licensing others (such as the owners) to use the designs. It's much like owning a building but renting out space to tenants; you have the ultimate right of ownership but can permit others to use your property, on your terms. According to Prince-Ramus, the agreed-upon terms are the precise wording of the credit. In other situations, permission to use designs might be conditioned upon payment (such as where an architect, rather than transferring copyright in his designs, licenses them to the owner).
Scheeren's credit includes a statement that the copyright in the designs belongs to OMA (“© OMA”) and a credit attribution, “The Interlace by Ole Scheeren.” The statements are not necessarily contradictory, but the fact that the attributions on the two websites don't appear to match creates the impression that the parties haven't agreed on the precise credit for the project.
Agreements create (or should create) clarity. The very act of spelling out expectations in an agreement often helps clarify them and can compel parties to deal with issues they might otherwise have neglected to address. They need not be complex legal structures; they need only state the terms to which the parties have agreed, and to be signed by the party against whom the term is sought to be enforced. For example, if an employer has signed an agreement permitting an employee to use designs and a particular credit on the employee's website, that agreement may be enforced against the employer.
Cheryl L. Davis, Esq., is a litigator specializing in intellectual property law with Menaker and Herrmann LLP in New York. She is also a published playwright.