The Federal Copyright Act was amended twice in the 1990s to expand protection for works of architecture. Although pictorial and graphic depictions of structures had been protected under the Act, architectural works now became a distinct category, and architectural plans were also protected. But what does the term “plans” encompass?

A federal appeals court recently addressed this question. The court concluded that “plans” include not just graphic representations created for artistic purposes, but functional drawings as well. Floor plans and renderings are included.

The second case in this issue involved a project owner suing a contractor for noncompliant work outside the time limitations of a state statute. The owner argued that the time period had been extended by the contractor’s reasonable explanation of the cause of the problem and by the contractor’s continued work after the problem was first detected.

The third case interprets a contractual scope of work requiring an architect to “check contractor’s schedules.” Does that refer to hardware and finish schedules, or does it include review of the contractor’s monthly updates of its CPM performance schedule?

A federal statute governing the copyright of architectural works applied not only to pictorial depictions of buildings but also to functional drawings, such as floor plans and renderings. However, a separate statutory prohibition on removing copyright notices from works used in internet marketing did not apply to the failure to place the notice on newly created works. 

Neither a contractor’s explanation of a problem nor the continuing performance of the work extended a project owner’s statutory period for filing suit against an architect for inadequate specification and inspection of the work.

The term “check contractor’s schedules” in the architectural services scope of work is ambiguous. Extrinsic evidence, including the procuring agency's prior practices, has to be examined.

Project owners, public and private, favor prompt notification requirements for claims. This provides them with a tactical advantage. Contractors must give written notice of a specific claim quickly after the claim arises, or the claim is barred as untimely. The contractor loses all its claim rights. However, this device also poses problems for project owners.

A recent appellate court opinion criticized these quick-claim mandates. Depending on how the claim notice requirement is structured, the contractor may be forced to give notice while negotiations of the matter are still underway. Transforming fruitful negotiation into a costly, adversarial contest may not benefit either party.

The second case in this issue involves a contractor’s reliance on owner-furnished, as-built drawings. The contract said the drawings were approximate, not for construction purposes, and were provided merely as a courtesy. Did the owner effectively shift the risk of undisclosed site conditions to the contractor?

Ongoing negotiations of responsibility for an extended performance period did not establish a contractor’s knowledge of the basis for a claim. These negotiations did not trigger the 30-day claim notice period.

Broad disclaimers did not negate the government's responsibility for the accuracy of the as-built drawings furnished to the contractor. The contractor’s notification of differing site conditions two weeks after discovery was sufficiently prompt.

Language in contracts and statutes is usually interpreted according to ordinary or common usage. Courts regularly cite a dictionary meaning. Some terminology, however, gains a specialized, technical meaning within a particular trade, industry, or profession. Such terminology are terms of art and are interpreted in accordance with their specialized use.

The Minnesota Supreme Court recently interpreted the word termination as used in a statute of limitations governing the construction of improvements to real property. The term does not refer to the conclusion of physical work. It is a term of art within the construction industry and construction contracts. Termination refers to the conclusion of a contractual relationship, not the status of physical work.

The second case in this issue involves an alleged defective specification. A contractor argued the specified materials would hinder obtaining the required warranty for the roofing system and contended that the problem excused its failure to perform the work in accordance with the contract schedule.

The third case addresses the choice of state law governing a performance bond claim. The bonded project had a determinative location. The domicile of the parties to the construction contract and the location where the contract was created were not determinative.

The word termination, as used in the construction industry and construction contracts, refers to the end of a contractual relationship, not the conclusion of physical construction work.

A defaulted contractor failed to show that the government’s specifications were defective. They also failed to link issues with those specs to the contractor’s tardy performance.