Whose documents are they, anyway? Part 2 of 3

To review the first part of this three-part series, click HERE.

In my last column (June 2004) we began the investigation into the legal answer to the question "Whose documents are they, anyway?" It became immediately apparent to me that there is no quick answer to this seemingly simple question. There is no "case on point" that we can read and analyze to satisfy our inquiry. There is no case on point that will provide us with a silver bullet to protect our drawings, computer files and field notes from the demands of clients-clients who insist that we turn these documents over to them or who ask for additional copies years after the projects are completed. It is equally apparent that the answer to this question will lie in several areas of the law and that surveyors will have to develop strategies to protect themselves in the event that they one day may become that case on point.

The first strategy covered dealt with original documents. With regard to the plans, maps, sketches and plats in a surveyor's drawer, and with regard to the files in his computer, the Federal Rules of Evidence show us that the simple ceremony of signing and sealing documents transforms them from copies into "original documents." In a hypothetical lawsuit initiated by a disgruntled client seeking to obtain "original" drawings, the surveyor's argument would be that all of the originals were handed over to the client at the time services were rendered. In other words, the client has already been given the originals-all of them in fact. If it is the surveyor's custom to sign and seal one original and then generate copies for his clients from the one original, this will not be an argument in his favor. He will need to employ other strategies to defend an attack on his original documents. This is where our future discussion on copyright will come into play (to be published in Part 3 of this series, September 2004). In the meantime, we will cover field notes, field books, sketches and other such documents created as a result of providing final maps or plats.

Issues Related to the Ownership of Field Notes

Several issues come immediately to the surface when we turn our attention to field notes, et al. Don't confuse the issue of "who owns the documents" with what you might have to produce in a court of law. Although you may own those field notes and can defend your claim against an attack, that doesn't mean that you will not have to produce them as evidence in a trial. The next issue goes to the heart of what we do.

Do we produce goods or services? What is a survey? Is a survey simply the map we produce or do we provide a professional service to our clients? The final issue regarding the ownership of our field books, notes, sketches and such has to do with the essence of what these things are. Are they the tools that we use to provide our services, or are they themselves end products? If we are in the business of providing a product-let's say a car for example-then logically all of the parts that make the car a car must be sold and delivered along with the car. If, on the other hand, we are in the business of providing a service, then logically the instruments we use to provide that service remain with the service provider. No one expects a car mechanic to turn his tools over to the customer who brought his car in for repair.

Goods or Services

There really is very little question that what we do is provide a professional service to our clients. Products (i.e., consumer goods) and the merchants who deal with products are covered under the Uniform Commercial Code (UCC). The UCC is a set of commercial statutes that have been universally adopted by the states. There may be one or two states out there that haven't adopted them, but most states have. If surveyors are producers of products, then we would fall under the UCC regulations. However, surveyors, engineers, architects, doctors, lawyers, etc., are not subject to the UCC. The courts conduct a "predominate purpose test" to determine if a given transaction is predominately a "service" or "goods."

Under the predominate purpose test, as applied by a majority of courts, a hybrid transaction [meaning a transaction consisting of both a product and a service (i.e., a map or plat and professional services)] must first be classified as a sale of goods in order for there to be UCC base, implied warranties on the goods included in the transaction. If goods predominate and they are consumer goods [then] section 2-316.1"¦ applies to a seller of consumer goods. If, however, the predominate purpose test results in classifying the transaction as a contract for services there would, under the majority approach, be no UCC base, implied warranties on the goods included in the transaction.[1]

In the case cited above, the court discusses the implied warranty of goods applicable to all UCC transactions. Our interest in this case, however, is that if "goods" predominate, then it is a UCC transaction, but if "services" predominate, then there are no UCC implications. This point is further clarified in another case:

...those who hire experts for the predominate purpose of rendering services, relying on their special skills, cannot expect infallibility. Reasonable expectations, not perfect results in the face of any and all contingencies, will be ensured under a traditional negligence standard of conduct. In other words, unless the parties have contractually bound themselves to a higher standard of performance, reasonable care and competence owed generally by practitioners in the particular trade or profession define the limits of an injured party's justifiable demands.[2]

Again, in the previously cited case, the court discusses the implied warranties under the UCC. But what the court is telling us is that "experts" who render "services" are not bound by the UCC's implied warranties, but "reasonable expectation" and "competence owed generally by practitioners" of the given profession. In other words, what we can glean from both cases is that experts who render services are not subject to the UCC. If we were, then our products would carry with them an implied warranty. But our products do not carry an implied warranty, therefore we are service providers and not product producers.

Land surveyors are professional service providers. We don't provide warranties or guarantees on our work. Our work is guided by professional judgment that is not infallible. "Reasonable expectations, not perfect results" guide the exercise of our practice. By and large, our professional judgments are rendered on a map or plat of survey. This is not a "consumer good" but a "professional service." We use certain instruments in the course of rendering our services. Those instruments include theodolites, electronic measuring devices, calculators, computer programs-the standard surveying equipment. In addition, those instruments include our brains, our thought patterns, our notes, our sketches, our field notes and the like. No one would question that our truck remains our property when we perform a survey, so why does the question come up about our field book? Well, it does. This is where our buddies, the architects, come into play. That's right, I said our buddies the architects. Fortunately for us, they've been down this road before.

Instruments of Service

There is a term that architects have developed called "instruments of service." Drawings, specifications, sketches and other such documents used by architects to develop their plans are "instruments of service" and remain the property of the respective architect.[3] This has to be our strategy as well. We must consider our field notes, field books, sketches and all other support documents created as a result of the performance of our services as instruments of service, over which we maintain a proprietary interest. The best way to implement this strategy is the same way the architects do: through contract law.

Contract Law

I said in the first installment of this series that we would explore three areas of the law in search of our answer to the question "Whose documents are they, anyway?" Contract law is the second of those three areas. We will not discuss contracts in general; it is assumed that you already use a standard contract. We will simply look at a single clause to add to your standard contract (if you don't already have something similar), such as:

Drawings, sketches, field books, field notes, electronic field data, computer files, and other similar documents are instruments of service, and as such are to remain the property of the land surveyor.

As we know, many surveyors do a vast amount of work without a contract. I would be less than truthful if I said that I have never worked without one. Nevertheless, without a contract specifying that all of your original works are instruments of service and that you retain title, you will be left to your own devices to defend your ownership should the question ever arise.

Stating Ownership of Documents in Your Contracts

As we discussed last month, I believe that you could make a very good case regarding original maps and plats with or without a contract. The simple fact that you handed over all of the originals to the client at the time you rendered your services ends the argument. Your field books, on the other hand, are a different story. There is absolutely no question that you have the original field notes in your possession. If, in our hypothetical lawsuit, the other side is able to successfully argue a sufficient nexus between the field notes and the plat of survey, the finder of facts could conceivably divest the land surveyor of ownership. This argument is not completely without foundation, as all of us who work in Public Land Survey System states know. The monuments on the ground, the official plat and field notes of the government land office survey were provided along with a patent, all of these constituted the conveyance from the federal government to private ownership. To avoid being our proverbial "case on point," you would do well to avoid the argument in the first place with a contract that protects your property rights relative to the ownership of your documents. Next up (September 2004) is the topic of copyright protection for land surveyors.

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.