Whilst imitation is said to be the sincerest form of flattery, the Queensland Supreme Court has reminded a Cairns builder that it may also be copyright infringement. In the recent decision of Coles v Dormer, the Court ordered — by way of injunction — a number of modifications to the front of a house which was largely identical to the plaintiff's.

The case has two takeaway points for those dealing with intellectual property issues:

  • First, the Supreme Court provided useful guidance on when a person who develops an initial idea will be an author of the resulting copyright work. In this case, the Court confirmed that, unless an architect receives a high level of assistance or professional collaboration, the building plans they prepare will attract copyright protections separate from the initial design ideas contributed by the person commissioning the building. Consequently, any unauthorised construction based on those plans may constitute infringement of the architect's copyright.
  • Secondly, the Court has shown a willingness to be creative with the remedies it orders. It balanced up the conduct of the parties and questions of oppression to develop an injunction requiring removal of the most offensive features of the infringing building. In this way, the uniqueness of the plaintiff's house's exterior was retained without requiring the total destruction of the defendant's property.

Facts of the case

In 2009, house plans for the original property were drawn up by an architect, Skyring, based on the rough ideas and input of the then-owner, Spicer. Once the house was built, Spicer sold it to Coles, who succeeded against the Bredens at auction. The Bredens sought out the builders of the original property, commissioning them to replicate it down the road in the same development. Coles, having learned of the Bredens' intentions, obtained from Skyring an assignment of the copyright to the house plans. Despite repeated communications from Coles to the Bredens and their builders that the construction infringed his copyright, work had been substantially completed by the time the matter reached the Supreme Court. At trial, the Court considered the following questions:

  1. Was Skyring the owner of the copyright in the house plans?
  2. Were the replica house plans and the replica house infringements of copyright?
  3. What, if any, remedies should be awarded? Was Skyring the owner of the copyright in the house plans? The defendants argued that Skyring's house plans were not original works because they were based on the initial rough ideas submitted by Spicer. Alternatively, they argued that the plans were a work of joint authorship with Spicer, which would have rendered Skyring's assignment of copyright to Coles ineffective. 

The Court rejected both of these arguments and held that Skyring's plans were original works capable of sustaining copyright. Although Spicer had submitted rough ideas of some detail, the sheer amount of necessary and uniquely professional architectural work undertaken by Skyring — rescaling, preparing additional plans, preparing elevation sheets and drawing windows — meant that the architect was the author of the resulting plans. Similarly, whilst Spicer provided feedback and suggestions on the plans during Skyring's drawing process, this did not amount to collaboration 'in the actual authorship of the work being produced'. Skyring was the sole creator of the copyright in the house plans, and consequently was able to assign the copyright in them to Coles.

Were the reproduced house plans and the construction infringements of the copyright?

The Court found that it was clear simply by looking at the two sets of plans that 'copying on a substantial scale had taken place'. Following this, construction of the Bredens' house was also an infringement of copyright, confirming that production of a building from plans is an infringement within the terms of section 36(1) of the Copyright ActMedia reports of the case show pictures of the two houses, giving readers the opportunity to judge this for themselves.

Awarding a suitable remedy

The remedies available for infringement of copyright under section 115(2) of the Copyright Act include 'an injunction ... and either damages or an account of profits'. The Court noted that during the course of construction and legal proceedings, the plaintiff had taken lawful steps to prevent infringement. However, the defendants chose to continue building the house even as the dispute went to court.

For these reasons an injunction was imposed. As the plaintiff's dissatisfaction was primarily with the reproduction of his house's external features rather than the internal layout, the injunction only required alterations be carried out to the front of the Bredens' house. The works would change the shapes of windows and remove certain features of the roof. The Court considered that the modifications were not oppressive to the defendants in the circumstances, and largely put the plaintiff in the same position had the infringement not occurred. For that same reason, it was not necessary to order demolition of the whole house. Further, the Court did not require surrender of the infringing house plans to the plaintiff, as they may be needed to effect the injunction works and later work on the property.

At the time of writing, the Court is still waiting for an election by the plaintiff between damages and an account of profits and later this month will hear arguments as to the quantum of any monetary award.