Just like the case of Coles v Dormer discussed here, the siren call of a dream home has caused its new owners and their builder to infringe copyright as found in Henley Arch Pty Ltd v Lucky Homes Pty Ltd [2016] FCA 1217.

Mr and Mrs Mistry engaged Henley Arch to draw up a number of house plans. The Mistry’s, at trial, indicated that they had certain concerns about Henley Arch. They approached Lucky Homes and gave them one of Henley Arch’s plans – for the Amalfi house – the dream home.

The house was built, Henley Arch sued. The Mistry’s tried to defend the case on the basis that they were “innocent infringers” and that they had relied on Lucky Home’s director Mr Shafiq’s advice. There was evidence that Mr Shafiq raised concerns about copyright but suggested that, if he made “15 to 20 changes”, there would not be a copyright issue. The judge rejected this defence and made it clear that what the Mistry’s should have done was seek a lawyer’s advice rather than rely on Mr Shafiq.

The court ordered that all the respondents (the Mistry’s, Lucky Homes and Mr Shafiq) pay a total compensation of $34,400 for Henley Arch’s lost profit plus $25,000 in additional damages by Lucky Homes and Mr Shafiq, plus $10,000 additional damages by Mr Mistry. Additional damages are on top of any compensation. They have punitive and deterrent elements and they depend on the seriousness of the conduct of the infringers.

There is a common misconception that if you change a certain percentage of a copyright work, you will avoid infringement. This is not so. The test of whether a copyright work is infringed is whether a substantial part of the work has been taken. This test looks at the original work globally. The quality of what is taken is more important than the quantity – so copying a relatively small part of the work can amount to copyright infringement if the part is sufficiently important to the whole work. Trying to work out whether something is a copyright infringement is difficult and needs an experienced eye.

Copying someone else’s artwork, design, paper, photograph etc without permission is always risky, especially, but not exclusively (as this case shows) in a commercial setting. The best course is usually to seek written permission for what you intend to do with the work. The Copyright Act does contain many defences which allow copying in certain circumstances but, at 732 pages long, it makes for dry bed-time reading. Consulting a copyright lawyer may save you the heart-ache of the Mistry’s.