Green Living Residence

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 & Flaton¹, 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.

Footnote

¹Look Design and Development Pty Ltd v
Edge Developments Pty Ltd & Flaton [2022] QDC
116

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.