Architectural concept design agreement

An architectural concept design is the first decision that shapes the entire project, testing the site’s intended use, capacity, volumes and alternative solutions. Legally, however, it has two aspects: the agreement to produce it is a works contract, while the result is the architect’s copyright work. The copyright provisions in architects’ draft agreements are often written for the author rather than the investor.

The statutory rule for a commissioned work under § 91 of the Copyright Act (Act No. 185/2015 Coll.) allows the client to use it for the purpose arising from the agreement; anything else requires the author’s consent. If the agreement is silent, the developer cannot be sure it may give the concept to another designer as a basis for project documentation, use the visualisations for marketing and pre-sales, or modify it later. Each step then depends on the architect’s further consent, leaving the developer hostage to its own concept. The solution is an express, sufficiently broad licence for later documentation stages, adaptation and changes by others, and marketing, with agreed exclusivity and duration. An exclusive licence requires writing by law (§ 65(3) of the Copyright Act), so leaving it for later is not an answer. Beware the default: unless an exclusive licence is agreed, the author is deemed to grant a non-exclusive licence (§ 70(1)) — silence therefore favours the architect.

Another point investors underestimate even more: the architect may use a commissioned work itself and allow others to use it, unless otherwise agreed and provided this does not conflict with the client’s legitimate interests (§ 91(2) of the Copyright Act). Without a contractual restriction, the same or a very similar design could therefore appear in a competitor’s project; any dispute would turn on whether this conflicts with your legitimate interests, an uncertain basis. Exclusivity and a ban on use for a competing project belong in the agreement, not merely in a relationship of trust.

The other layer is the author’s moral rights: attribution and integrity of the work. The architect cannot transfer these, but can give defined advance consent to alterations. A good agreement therefore combines the licence with that consent and a clear acceptance process: what the brief contains, how many options are included, how comments are handled, when the concept is accepted and what triggers payment. It also addresses the investor’s cooperation and documents, deadlines and consequences of delay, and early termination, including the right to use unfinished work so a terminated relationship does not stop the project.

Selecting an architect through a competition is a separate issue. Whether holding an architectural competition or comparing proposals, rights to submissions, participants’ fees and the winner’s duty to enter a contract must be addressed in the competition terms — after evaluation, the negotiating positions reverse. We also prepare the concept agreement with what follows in mind: project documentation for permitting and the approvals process. When the phases connect contractually, the project does not depend on one supplier’s goodwill.