BIM Law #3: Uses of BIM

I left off with an overview of Building Information Modeling (“BIM”) for the lawyers. This next part is of interest to more people, because the matter of what a BIM model can be used for leads in to the matter of what it may be used for, which is a very important issue for your contracts.
As always, these are just introductions and overviews, not legal advice. If you have specific questions, or need a new contract, talk with a lawyer. I am a Massachusetts attorney and I default to Massachusetts law; some of the information in my blog posts will inevitably be incorrect in other places.
BIM Used By the Design Team
I’ve heard this described as “Stage 1 BIM”: The BIM model is only for the use of the design team. The team creates the model and uses it to generate printed or PDF drawing sets, which are the deliverable.
In the least BIM-coordinated version, the architect develops the BIM model uses it to create PDF drawings and two-dimensional CAD underlays, and transmits those to the consultants (the engineers, interior/landscape/lighting designers, cost estimators, etc.) The consultants use those files in combination with their software of choice to produce their parts of the drawing sets, which they transmit back to the architect as more 2D drawings. Coordination between the disciplines is done in 2D, on paper, and whatever changes result are made by each discipline.
In the more coordinated version, the architect and the consultants use compatible BIM software packages - for example, Revit Architecture, Revit Structure, and Revit MEP (which are now a single product with different interface options). The architect creates a main building BIM model and transmits it to the other team members, with updates provided on a schedule, and each team member can build on the model, for example by adding structural elements, ducts, plumbing or lighting, to data sets that can be maintained separately but loaded and viewed along with the main building model.
More Coordination = More Uses + More Complications
By extending the use of the BIM model to the consultants, the design team can improve coordination between the disciplines, and can more quickly and thoroughly check for conflicts between building elements. For example, it is easier to see where a duct does not fit between a beam and a recessed light when the duct, the beam and the light are all in the same 3D model. When each of these components is modeled with a certain degree of dimensional accuracy, some software packages will automatically detect such conflicts and display them to the designers. Drawings can be generated showing the different elements in relation to one another, and lists of all included building components can quickly be produced for cost estimating.
With this power comes the need for new coordination between the disciplines, and new contract language. This is where the BIM Protocol comes in. A BIM Protocol is a formal description of the obligations of each team member in creating the BIM model:

• What components each team member will produce, to what degree of detail and on what schedule.
• What team member maintains the file repository and in what form.
• The schedule of model file updates and coordination meetings.
• Copyright licenses governing use of various team members’ BIM models by the other members.
• Assignment and limitations of liability.
• Identity of the BIM manager, who is responsible for coordinating the BIM project across disciplines.

There will be more on BIM Protocols in a future blog post on BIM contracts.
BIM Deliverables
Currently many or most design teams that use BIM models use their BIM software to generate 2D drawing sets, which are the client’s deliverable. The client and contractors only have access to the drawing sets, not to the BIM model itself.
Many contractors now use BIM models in their process, in systems that improve coordination and scheduling and monitor progress between trades. Some contractors, when provided only paper drawings, proceed to generate BIM models from the drawings or contract with drafting companies to have models produced. Later, when the building is complete and occupied, the owner’s facilities manager might use a BIM file as part of a system for monitoring building performance and diagnosing building systems problems.
Logically, the next level of BIM use is the BIM deliverable. When the design team provides a BIM model to the contractor and owner, they save the work of making a new BIM model and opportunities for translation errors are reduced. But BIM deliverables require a further elaboration of the BIM Protocol, and very clear contracts that set the expectations for BIM model accuracy and completeness and govern the permitted uses of the model by each party.
In my next BIM Law post I will discuss BIM contracts and the array of expectations they must manage.

Are Buildings Copyrighted?

Most architects know that their drawings are protected by copyright. That’s sometimes the basis of contract sticking points (“Who owns the drawings?”) and the more tech-savvy know that limited copyright licenses can be used to limit the uses of BIM files by owners and contractors both as a method of retaining control over the process and as a limitation on the architect’s liability.
What gets less press - and this is true even in law school copyright classes, where the topic is only mentioned but not explored - is that buildings themselves enjoy a form of copyright protection.

Please note: This article applies in the US only. Other countries have different copyright laws. This is not legal advice, just a broad overview. If you need help with a legal question, contact a lawyer in your area.

History

Before the United States joined the Berne Convention (the international agreement on copyright protection, enacted in 1886 and joined by the US in 1988) there was no building copyright in the US except for purely ornamental works - structures that were sculpture only. The federal law that formally added copyright protection for other buildings was not enacted until 1990, and any buildings substantially completed or published before December 1, 1990, are not protected.

What Buildings Are Protected

Copyright protection now applies to buildings newer than December 1, 1990, that are capable of human occupation (e.g., houses, office buildings, even gazebos, but not monuments that lack roofs). Mobile structures - mobile homes, RVs, boats - are not protected by architectural works copyright, though they may have other forms of intellectual property protection. Modular structures assembled on-site can be protected.

What Features Are Protected

Copyright protection on buildings applies to those aspects of the design that are form, not function. In any design context, separating the two is difficult; if I ever write an extended article on the subject it will have to quote from Huxtable and Banham, feature interviews with theory professors and be unreadable by anybody without at least an M.Arch. The Congressional committee report references Michael Graves’ dichotomy between “internal” and “poetic” architectural languages. The internal is “determined by pragmatic, constructional, and technical requirements,” while the poetic is “responsive to issues external to the building, and incorporates the three-dimensional expression of the myths and rituals of society.” The report states that the intent of the law is protect the poetic language only.

In real-world terms, therefore, design decisions made for practical reasons are less likely to result in copyright protection than those made for aesthetic, cultural or dareI say whimsical reasons. (Yes, I admit, I have made design decisions for purely whimsical reasons.)

While “standard” features - e.g. a window from a catalog, a common wall assembly or a rectangular panel of fiber-cement board - are not copyrightable, creative combinations, configurations and combinations of otherwise standard items are.

What Is Infringement

A building can be accused of infringing another building’s copyright in the same ways that any other work can infringe, though most obvious and common would be actual copying or “substantial similarity” copying. The line between inspiration and copying can be fine and difficult to place.

In one famous case - which never made it to court and so never produced a legal precedent - recent architecture school graduate Thomas Shine accused architect David Childs of making the New York Freedom Tower a “substantially similar” copy of Shine’s student project. Had the case gone to court, Shine would have had to prove that Childs’ design was so similar that copying should be inferred, and that Childs had access to Shine’s design. The latter part could be proven by showing that Childs was a member of the jury that evaluated Shine’s project and that Childs had commented on the project. Childs responded that the similar elements were really industry standard and that the design was informed by the site and other unique factors.

The line between inspiration and copying is a distinction that would make many architects rightfully uncomfortable, because the practice of drawing on “precedent” studies is time-honored tradition in architecture, and perhaps this - together with the relative newness of architecture copyright - contributes to the relative scarcity of architectural copyright disputes, compared with more litigious fields such as software and music.

What Else Should I Know?

Too much to write here! It took me three law school classes and two co-op placements in the field to get a handle on copyright law. I’ll write more along these lines in upcoming posts continuing my discussion of BIM and the law and maybe one relating the recent Oracle v. Google case to architecture copyrights, but if you have any questions please email me at Andrew@AndrewLynnLaw.com.

When are building owners liable for negligence in Massachusetts?

Please note: This article only addresses Massachusetts law, and it is only a description of current events and broad outlines of the law. If you have particular questions about how property liability law affects you, you should speak with a lawyer.


Liability for injuries stemming from hazards on a property are a source of worry for property owners and their architects alike. This area of law has been evolving over the last several years in Massachusetts, notably in 2010 when the Supreme Judicial Court ruled that common negligence principles - more on what that means in a bit - would be applied to snow and ice injuries.
Recently I’ve seen two more court rulings on an exemption for property owner negligence. A state statute (G.L. c. 21, § 17C) exempts property owners from negligence liability when they permit the public to use the land for “recreational, conservation, scientific, educational, environmental, ecological, research, religious, or charitable purposes without imposing a charge or fee therefor” and a member of the public who is there fore those purposes is injured. The exemption does not apply to injuries caused by “wilful, wanton, or reckless conduct.”
The Recent Cases
The two recent cases address two of the “elements” of the exemption. To satisfy the wording of the exemption statute, several requirements are needed, which are all referred to as elements:

1. The property is open to the public for the listed uses mentioned above.
2. The injured person is a member of the public who is there for one of the listed uses.
3. The injured person was not asked to pay a fee or charge to be there.
4. The injury was not caused by willful, wanton or reckless conduct.

Negligence: For the nonlawyers, negligence happens when a person who has a duty to be reasonably careful fails to do so, causing injury to another person. “Wilful, wanton or reckless conduct” describes behavior that is legally worse than negligence - not just a failure to be careful, but a deliberate act or willful ignoring of a hazard. Number 4 on my list is read by judges as meaning that the exemption applies to negligence only, because conduct that is worse than negligence is excluded.
Also, don’t confuse negligence with strict liability! While a careless design decision might be merely negligent, a design decision that causes risks by violating the building code could result in “strict liability.” That’s a different type of case that has different rules.
“Charge or Fee”: The first case is is Patterson v. Christ Church (Mass. App. Ct. 2014). It clarifies point number 3. In that case, the plaintiff, Ms. Patterson, is a woman in her '60s who visited Boston as part of a seniors' tour group. When the group visited Old North Church, a docent ushered the group to the church’s pew boxes. When Patterson attempted to step into the box, she tripped on the step up and was severely injured, and required surgery and rehabilitation.
Patterson accused the church of negligence for not making the step more visible, and not giving any warning that the step was there. The church countered that it was not liable to her for negligence, because the church is open to the public for sightseeing (a recreational use), she was there for sightseeing, and there was no entry fee. But Patterson argued that because she paid a fee to her tour company, and the church received payments from a nonprofit that organizes tours and guides, that’s the same as the church charging fees.
That argument isn’t entirely without foundation. There have been other cases where indirect payments were considered fees - for example, the owner of a field charging a baseball league for its use, and the league collecting money from the players - so that the recreational use exemption did not apply. But what’s lacking here is a connection between the money that Patterson paid and the money the church received. The tour company did not pay the nonprofit. Under those circumstances the court would not rule that she was charged a fee, which meant that the church’s exemption argument would succeed.
“Open to the Public”: The second case is Wilkins v. City of Haverhill (Mass. 2014). It clarifies point number 1. In this case, Ms. Wilkins, a parent of a Haverhill public school student, went to the school during off hours for a parent-teacher conference and was injured when she slipped and fell on ice that had been allowed to accumulate on a school walkway. The school countered that it was exempt from negligence liability because she was there for an educational purpose.
Wilkins successfully argued that the exemption did not apply because at the time she was injured the school was not open to the public.
Takeaways
A property owner - and by connection those hired by the owner to do construction and maintenance - has a responsibility to act reasonably to remove - or at least give warnings of - hazards on the property. In case things do go wrong and somebody gets hurt, there are some protections in place, but it’s incorrect to make broad assumptions. For example, a school might think that because its uses are educational it will be protected from negligence lawsuits, but there’s more to it.

Bim Law #2: Intro to BIM Concepts

Architects: You probably know this already. Feel free to skim. This section is for lawyers who aren’t familiar with architectural drawings and BIM.
A Bit of History
When I was in architecture school, we had an elective called History and Theory of Representation. It was really a lot more interesting than it sounds. One of the takeaways was that there is a fundamental link between how we draw, or represent, our ideas for a planned building, and what that building will eventually be. If you’re an ancient Greek with a very limited supply of drawing materials, you need only lay out a footprint and decide how many columns to use and which order, and the rules of proportion fill in the rest. In medieval times you might draw a plan an a few elevations of a church that’s essentially an extrusion of its front a side facades, forming an intersection. When the renaissance Italians figured out perspective, vanishing points and converging lines started popping up all over the place, and later, when section drawings gained in popularity, symmetric designs centered on one or two cross-sections became characteristic.
Throughout the 20th century, the standard practice was to draw each part of a building in plan, elevation, section, and sometime three dimensional projections. The drawings range from small scales, fitting the entire project into one sheet and giving a broad layout, to larger scales representing individual rooms, to larger scales representing wall constructions, to even larger scales showing the arrangements of parts within a wall.
In the usual 20th century method, these sets of drawings, along with books of specifications describing (for example) what type of concrete or size of floor tile are used, are the instructions that architects, engineers and other designers give to contractors. Contractors are responsible for “means and methods”: what construction workers to hire, where to assign them, what equipment to use, etc., etc. Often, choice of material suppliers is left to the contractor as well. Inevitably, there are questions that will not be answered until those decisions are combined with the designers’ instructions in creating shop drawings - drawings of parts and fabrications that translate from designers’ drawings to fabrication.
Computer Aided Drafting
Computer Aided Drafting (CAD) is, as the name implies, a software tool for producing two-dimensional drawings. It is best understood as a direct replacement for pencil and straightedge, and so, while its introduction changed the way drawings themselves were produced - making editing and copying of drawing elements faster, for example, by keeping drawing information within an easily edited computer file until ready for printing - it was not a real paradigm shift. The method remained line drawing, and the deliverable product remained drawings on paper.
Recent Computer-Driven Developments
Over the last 20 or so years, new workflows have been introduced by architects wishing to design buildings and assemblies that are not adequately described by those sets of drawings and the limitations inherent to two-dimensional paper. For example, this San Francisco federal building, designed by Morphosis:

By providing a 3D computer model of the exterior mesh and its support assembly to the fabricator, the architect was able to ease the process of making and delivering the parts, while keeping a highly detailed level on control over the process.
Workflows that include going directly from a digital 3D model to fabrication are most often seen in large projects with creative geometries. The best known examples are the works of Frank Gehry, who actually directed the development of a software package optimized for solving the problems of his complex geometric style and marketed it to other architecture firms.
Building Information Modeling
The workflow that directs digital fabrication is one application of BIM technology, but BIM is more often used in simpler projects and currently is being applied to everything from small houses to civic centers. The most popular BIM package, Autodesk Revit, is primarily understood as a tool for design and drawing production of what would be called “normal” buildings.
If the end product has not been, in a visible way, radically altered, the tool has finally made the paradigm shift that CAD lacked. The reason I say this is that a designer working with BIM is no longer drawing lines, but instead creating a virtual model of a building. Instead of using a “line” tool to draw a set of lines that the designer understands to represent a wall, for example, a designer working in BIM selects a “wall” tool, chooses the type of wall to be inserted (an exterior masonry wall, for example) and selects the location within the model to place the wall.
That wall is three-dimensional - it has a starting point, length, and height. It also has embedded type information. The designer can instruct the program that an exterior masonry wall is made from a layer of concrete block, with painted drywall on the interior surface, a gap containing an air and moisture barrier, insulation and an air cavity, and a veneer of red brick on the exterior. The designer can select plan, section, elevation and perspective views of the wall and show it at multiple scales and levels of detail, and the actual drawings are generated not by the designer drawing lines but by the computer placing the lines needed to represent the wall as chosen. When the designer wishes to modify the design by moving the wall, it is only necessary to make the change once and all views will update to reflect the change. Contrast this with CAD, where the lines representing the wall must be selected and moved in each view in which the wall appears, and the power of BIM starts to become clear.
In the next article we’ll start putting this together by describing some of the uses of BIM.

BIM Law #1: Introduction

Building Information Modeling (BIM) is more than just a new way to produce architectural drawings. Because BIM expands the methods of coordination and conflict checking that are available, as well as the types of deliverables that are possible, it brings changing legal requirements for contracts and shifting responsibilities and standards of care.
This is the first in a series of posts on the legal effects of BIM adoption for architects and other design professionals. These concepts are important! Properly managing your legal BIM strategy will allow you to use these technologies to improve productivity and the effectiveness of your design and production team, but mishandling these issues or simply continuing to handle contracts and legal issues the way you always have could lead to unnecessary costs and risks.
Topics that will be covered in this series:
1. This introduction
2. Intro to BIM concepts
3. Different uses of BIM and their implications
4. BIM and Contracts
5. BIM and the Reasonable Standard of Care
These are just introductions and overviews, not legal advice. If you have specific questions, or need a new contract, talk with a lawyer.

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About me:

I am an architect-turned-lawyer in the Boston area, and I am opening a new law practice. I will be representing A/E/C clients, innovation entrepreneurs and other small businesses in Massachusetts.

For more about me, see my LinkedIn link on the right.

About this blog:

As the name implies, this blog will become my repository for writings on any legal subject that's of interest to architects, engineers and other design and building professionals, especially in Massachusetts. If you see any subject that you would like to know more about, don't hesitate to send me a message.