The owners and builders of a house have been Ordered by the Supreme Court of Queensland to undertake significant modifications to it after its design was found to infringe copyright in the plans of a substantially identical house.
The full decision is available here: Coles v Dormer & Ors  QSC 224
Mr & Mrs Breden (the defendants) unsuccessfully tried to purchase a house. The house (which is pictured) was located at Lot 16, “The Sands”, being a gated estate in Port Douglas. The successful purchaser was Mr Stephen Coles (the plaintiff), who was a veterinary surgeon. He purchased the house for $1,150,000.00.
The house was originally built by Port Douglas Builders (“PDB”) (also defendants) using plans drafted by Mr Gregory Skyring. The unsuccessful purchasers, Mr & Mrs Breden, decided they liked the house so much that they paid PDB $1,000,000.00 to build a house just like it, in the same estate.
Having heard rumours that a plot was afoot by Mr & Mrs Breden to copy his house, Mr Coles paid Mr Skyring $110.00 to acquire the copyright in his house plans by having the plans assigned to him. In doing so, he intended to make sure that his house would be the only house of its design in the area.
Mr Coles then put PDB on notice of the fact that he held copyright in Mr Skyring’s house plans and that he objected to the construction of a house identical to his. In particular, Mr Coles was not so concerned about the interior of any house constructed by the Bredens, but was determined to ensure that there was no exterior duplication.
Unfortunately, PDB and the Bredens, instead of accommodating Mr Coles’ concerns by varying the plans, pressed on with construction of the house, and by the time the Supreme Court heard the dispute the exterior of the house was finished and the building work was at the practical completion stage.
The Copyright Act 1968 (Cth) provides that copyright subsists in “original artistics works” by an author who is an Australian citizen or resident.
Drawings, models of buildings, and buildings, regardless of their artistic quality, are “works” within the definition of “artistic works”. This means that building and house plans are artistic works which are protected by the Act.
The Act also provides that the author of an artistic work is the owner of any copyright subsisting in the work and is capable of transmitting it by assignment.
Defendants’ Case at Trial
The defendants essentially denied that they had infringed copyright in the house plans, because:
- Neither the house plans which were used for the construction of the Bredens’ house or construction of the house substantially reproduced Mr Skyring’s house plans; or
- Mr Skyring had no copyright in the house plans which he assigned to Mr Coles because he merely transcribed plans prepared by the original owner of Mr Coles’ house into “useable form”, (with the result that the plans were not technically “original” artistic works).
Decision of the Court
Justice Henry carefully considered the history regarding the creation of Mr Skyring’s house plans and concluded that Mr Skyring had exercised significant effort in drafting the house plans, as well as exercising “independent intellectual effort”.
Visual comparisons between Mr Skyring’s house plans and plans produced by the original owner of the house demonstrated that Mr Skyring’s plans were more than simply a copy or transcription of existing plans. Justice Henry was therefore satisfied that the Mr Skyring’s plans were original artistic works which attracted copyright protection.
The Court was also satisfied that the house plans utilised by PDB were a substantial copy of Mr Skyring’s plans. In particular, expert witnesses for both the defendants and the plaintiffs agreed that the Bredens’ house plans were a substantial copy, which was also apparent from a visual comparison between Mr Skyring’s and the Bredens’ plans.
The extent to which the plans were copied was striking, such that the copied plans even contained identical notations to Mr Skyring’s plans. This included, for example, a reference to the location of a bathroom window in Mr Skyring’s house plans which was replicated in the Bredens’ house plans.
The Court considered whether it should Order demolition of the Bredens’ newly constructed house, but ultimately concluded that this was not necessary, as modifications could be undertaken to the house to eliminate or significantly reduce the appearance of external replication without substantial interference with the house’s structural integrity. The Court therefore Ordered that various modifications and alterations be conducted to the house.
Effect of Decision
The decision is a reminder to builders, architects, draftsmen and designers that there are significant risks and implications should they choose to copy house or building plans without appropriate approval.
More than the cost of having to undertake additional work or modifications is the risk that the Court could grant an injunction, or make an Order, which has the effect of requiring the demolition of a house which has already been constructed. Whilst the Court in this case is yet to make a decision regarding payment of costs, our experience is that costs in a Supreme Court Proceeding also have the potential to exceed hundreds of thousands of dollars.
Remember, Darling Downs Conveyancing is a division of Groom & Lavers Solicitors. Groom & Lavers has an experienced dispute resolution team which acts for builders, tradies, contractors & sub-contractors, and home owners. Should you require legal advice, please contact us for a consultation today on (07) 4616 9600, or via our contact page.