A Legal Look

June 1, 2004
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"Whose documents are they, anyway?" is a question that surveyors, engineers and architects often ask-those of us who provide a professional service that includes the production of maps, plats, plans and reports. Some of our work borders on intellectual property and deserves copyright protection. At the very least, we create working documents (e.g. field notes, electronic data, digital files, tracings, sketches, etc.) that are surely proprietary property, right? This is the gist of the question. If these documents would not have been created but for the services provided to a client, then who really owns them? Do clients have the right to demand a surveyor's field notes and drawings in his (or her) files? And can they demand additional copies years after the original services were provided?

This series of related questions has a complex answer. For starters, there are at least three areas of the law that must be looked at: case law (often referred to as common law), contract law and copyright law. There also may be other considerations such as state and federal statues. This article will focus on case law, albeit in a limited scope; I'll focus on the other areas in later articles. If the three areas of case, contract and copyright law are successfully explored, then the questions posed should be sufficiently covered, at least for general practice purposes.

Case Law is Limited

Case law is by no means an exact science. There are some very bad case law examples out there and there are some very good case law examples. The trick is recognizing one from the other. Several bad decisions go unchallenged for various reasons, leaving society with less than beneficial legal standards-that is, until someone comes along who challenges the same issues in another case. It is also important to realize that case law is a product of our adversarial judicial system. In many cases, points of law that should have been brought up and argued by one side or the other-points that could have changed the outcome of the case-are never brought up and never argued. The judge will not argue these points for the opposing sides, and juries will not reach verdicts on issues that are never argued. This also plays in favor of bad decisions. But it's the best system we've got, and case law is the best interpretation of the law we have. Therefore, it's useful for us to look at case law to see how the courts considered particular issues in order to figure out how these issues may fare in the future.

Another aspect of case law is that only a small percentage of cases are ever written up and recorded in the major law reporting publications. In addition, unless a case has been appealed and reviewed a couple of times, the chances are greater that the law decided in some lower state court will never see the light of day, and/or may be less than adequate law not applicable to our given discussion.

Defining the Definition

So, whose documents are they, anyway? I have not found a case on this specific question. What this means is that the issue has not been litigated to the point where it has surfaced in a major publication. But, there are some collateral issues that have surfaced during my search. Some of those issues include "original documents," "work product," "self-proving document," and what we call our maps, plats and other documents. Are they "products" or "services"? That is the kind of question that would have to be explored in a longer legal treatise. For our purpose at hand, I will focus on what constitutes an original document.

What constitutes an original document is important because it would be impossible for a client to argue that anything more was owed or due to the client if the client has in his possession the "original" map, plat or report. Our Federal Rules of Evidence, which are copied by many of the states and used as state rules of evidence, define for us what constitutes an original document. Rule 1001(3) defines an original document as "the writing itself or any counterpart intended to have the same effect by a person executing or issuing it." A few very important issues can be gleaned from this simple definition. First, an original can be the document itself or a "counterpart intended to have the same effect" such as a copy of a drawing. Second, the intent of the party executing the document or issuing the document is important. And last, executing the document or issuing it in some way can change its character from a copy to an original, if it was the intent to have this effect.

Let's talk about what we often refer to as the original map. Back before the days of CADD, it was easy to say that the original was the mylar or vellum upon which a drafter would apply ink. This original would then be checked and corrected by hand. Then a blueprint or blue line copy would be made. The copies would then be signed and sealed by the surveyor and issued to the client. This, in my opinion, is where our problems began. Many people referred to the original as that drawing put back in the drawer and the executed copies as "copies" handed over to the client. With the advent of CADD, the question of what constitutes an original is further muddied by the fact that there is a digital file in a computer that can be easily altered and from which copies are easily made ad infinitum.

The second point from the Federal Rules definition now becomes critically important. What was the intent of all that signing and sealing? Was the intent to transform copies into original documents by placing an original seal and signature on the copies, thereby making them the counterpart of the mylar in the drawer or digital file in the computer? Or was the intent to simply provide the client with "copies"? This is the pivotal issue that must be addressed in order to determine who owns the drawings in a surveyor's filing cabinet or computer.

There is no question that signing and sealing copies is a form of execution and issuance of documents. This is pure common sense and needs no case law references. This was the intent behind our practice acts that require a signature and seal of the professional in responsible charge. To "seal" a document means to authenticate the document, to "attest the execution" of the document by affixing a seal (see Black's Law Dictionary). Again, modern technology has muddied the waters here as well. Many surveyors now affix an electronic stamp and signature to their drawing files, effectively removing the ceremonial process of sitting down with pen and seal in hand and "executing or issuing" the drawing.

There is much that could be said for ceremony in the law. Much of it remains, and much has been omitted and ignored over time. For instance, in the execution of a deed, ordinary citizens (as opposed to licensed and regulated professionals) are to affix their seal to the document. Most don't use seals anymore. They simply use the word "seal" to effect this ceremony. Similarly, there used to be a formal ceremony associated with the delivery of the land. That ceremony has been whittled down to simple delivery of the deed. Nevertheless, the deed must be delivered, at least under the law of most states. If it's not delivered, there has been no transaction. Likewise, the execution and issuance of a map, plat or report, with the intent to change copies into originals must be made. I'm not arguing that electronic seals and signatures do not effect this intent. However, going back to our deed example, one can execute a deed, have the grantor's signature notarized and recorded in the public records, but if there is no delivery and acceptance by the grantee, there has been no transference of property.

Supply All Originals

If a surveyor ends up going to court to fight with a client over whether the client received the "original" map of survey that he or she was entitled to, the more evidence the surveyor brings to the table to prove that what he gave the client was the original, the better off the surveyor will be. If it can be proven by the other side that every copy spit out of the surveyor's computer carries his electronic signature and seal, or that his electronic signature and seal resides on every drawing on his hard drive, doesn't this make that computer file his "original" drawing? By the same token, if a surveyor's habit is to sign and seal all drawings filed in his cabinet, doesn't this argue the point that his intent was to make that filed drawing the original?

This is the reason that I personally insist on signing and sealing each and every copy of a survey map. This ceremony converts copies into originals because it was my intent to do so and that intent was formalized by the execution and issuance of the map of survey. This is true no matter how many copies I sign. Each signature and seal turns each copy into an original. I inform the client that I have issued six (or however many) originals in fulfillment of my contractual obligations. Thus, there is no argument left as to who owns the original documents: I have no more originals in my possession. This, of course, is exclusive of other remedies that surveyors may have through contract law and/or copyright law--a topic I'll explore in a later piece.

Neither the author nor POB intends this column to be a source of legal advice for surveyors or their clients. The law changes and differs in important respects for different jurisdictions. If you have a specific legal problem, the best source of advice is an attorney admitted to the bar in your jurisdiction.

To read the second part of this three-part series, click HERE.

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