With new homes, plans designed for similar price ranges often include common features designed to suit similar block sizes. While you may think it is easier to replicate a project builder’s plans, in reality it does not matter how little you vary the plans/design – you may infringe the project builder’s copyright in their plans.
In the recent case of Look Design and Development Pty Ltd v Edge Developments Pty Ltd & Flaton[1], the second defendants, Mr & Mrs Flaton (the Flatons), in shopping around for the best construction deal for the house they wanted to build, ended up utilising plans from Look Design and Development Pty Ltd (Look Design) to base their design ideas from.
Background
The Flatons had Look Design prepare and amend plans to suit their needs (Look Design Plans), and upon receiving the Look Design Plans together with some updated costings, ceased contact with Look Design. Instead, the Flatons pursued further design consultation and a quote with Edge Developments Pty Ltd (Edge), notably providing a copy of the Look Design Plans to Edge, whom then prepared some further plans (Edge Design Plans) for the Flatons.
It was alleged Edge advised the Flatons that they only needed to vary the Look Design Plans by 10%, assumingly to seek to avoid liability for copyright infringement. The Court found there was no dispute that Edge were given access to the Look Design Plans from the Flatons without licence or consent from Look Design.
The Court considered whether copyright existed in the Look Design Plans, and whether subsequent plans designed using the Look Design Plans (i.e. the Edge Design Plans), followed by construction of a house in accordance with those Edge Design Plans, amounted to copyright infringement.
Copyright law
House plans are protected by copyright. However, there is no copyright in an idea, style, or technique, as such. Rather, it is the form in which a particular plan expresses a style, idea, or technique that is protected by copyright.
Further, and to be clear, the commonly trotted out ‘10% change’ requirement (in order to seek to avoid copyright infringement) – is a myth. The real test is a question of quality and not quantity. That is, has a ‘substantial part’ of the copyright in the plans been reproduced? Importantly, the courts have held for example in earlier copyright cases involving building plans, that a ‘striking and distinctive’ al fresco area constituted an essential or material part of a copyright protected work, and was therefore a ‘substantial part’, the reproduction of which constituted copyright infringement.
This is all to say that copyright law in a construction context exists to prevent people from reproducing someone else’s plans without first obtaining their consent (i.e. by way of a licence), or otherwise by obtaining an assignment of the copyright in the plans.
What was the upshot?
In the Look Design case, the Court found that despite the relatively standard nature of the floor plan, in terms of types, shapes, sizes and configuration of rooms and spaces and the absence of any particularly distinctive or unusual features, there was, in the circumstances of Edge gaining a copy of it, such a substantial correlation to the Look Design Plans to objectively show that there had been substantial copying or reproduction of it.
Importantly, it is also worth pointing out that Edge and Look Design had settled Look Design’s claims as against Edge prior to the proceeding, by way of Edge paying the amount of $30,000.00 to Look Design.
In any event, the Court found that:
- there had been infringement of copyright in the Look Design Plans by reproduction of them in material form, both as the Edge Design Plans and as the house built on the Flatons’ land in accordance with the Edge Design Plans; and
- that all of this had been done by Edge, although under engagement as the agent of the Flatons to do so,
and as such, there was to be an award of damages in the amount of $500.00 to Look Design, pursuant to section 115(2) of the Copyright Act 1968 (Cth) (Act).
The Court held that, in the circumstances, being that Edge had paid Look Design $30,000.00 in settlement of its claims, that the settlement served as a substantial and adequate vindication of Look Design’s proprietary rights, which was to be supplemented by way of the Flatons’ payment of nominal damages in the amount of $500.00 to Look Design.
Further to the above, whilst Look Design had also pursued both Edge and the Flatons for damages for loss of opportunity to profit and additional damages under section 115(4) of the Act, the Court found there was no evidence the Flatons would have pursued Look Design to construct their home, therefore ruling against damages for lost commercial opportunity.
Where to from here?
It is important for both builders and home owners to be aware of their obligations under the Act. The idea of using a project builder’s plan on which to base your own design may seem convenient at the time, however it can, as Edge and the Flatons found out, easily lead to a finding of copyright infringement, which would best be avoided at all costs.
This case also serves as a reminder that when engaging a consultant to prepare plans/designs, e.g. building plans, graphic designs, or any other works that are the subject of copyright – where possible, it may be beneficial to seek an assignment of copyright in those works, or otherwise an appropriately drafted licence for use of the copyright. If you require any assistance in terms of preparing an assignment of copyright and/or a licence of copyright, please do not hesitate to contact us.
CGLaw has experienced practitioners across all areas of Construction and IP Law for both individual and business needs. Should you have any questions or concerns, reach out to the team on 07 4688 2188 or send us an email.
[1]Look Design and Development Pty Ltd v Edge Developments Pty Ltd & Flaton [2022] QDC 116
For further information please contact Ben Gouldson, Director.
The assistance of Jade Scheuerle, Law Clerk in researching this article is gratefully acknowledged.
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