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You bought your plot of land and are ready to build your dream house. You start shopping around, looking at designer homes and trying to find an architect. One architect provides you with a drawing of the design you want and it looks great, but is a little pricey. In the end, you settle with a local architect who is happy to follow the same design for just the right price. However, would this infringe the first architect’s copyright? This article explores whether your original architect could sue you for copyright infringement of building plans.

The Architect’s Copyright

Copyright is an automatic right, which protects the expression of an original idea. It protects literary works, computer programs, films, sound recordings, broadcasts and artistic works, such as an architectural drawing. The Copyright Act gives the owner of the artistic work a set of exclusive rights, including the right to:

  • reproduce the work in a material form;
  • publish the work; and
  • communicate the work to the public.

This means that, unless otherwise agreed, an architect owns the copyright in their work, such as design plans, drawings and detailed descriptions.

Avoiding Copyright Infringement of Building Plans

1. Is it a Substantial Reproduction?

There is a common misconception that if you change the original work by 10%, you can avoid copyright infringement. The real test, however, is whether a substantial part of the material was copied. In determining what is substantial, the question is one of quality rather than quantity.

For example, if you change the plan of one or two rooms but the overall house design is still the same as the original drawings, it is most likely copyright infringement. However, if the first architect’s plans show little to no resemblance to your dream house, you are in the clear!

2. Did You Copy the Drawings or the Concept?

Copyright does not protect ideas or concepts, but only the expression of such. This means that if you can prove the second architect’s design of your house was based on the concepts discussed rather than the actual drawings, you may be able to avoid copyright infringement. The best way to do this is by not providing your new architect with the original drawings. That way, the design is more likely to be based on your new architect’s original efforts and the overall concept you envisioned rather than copying the first architect’s artistic work.

3. Is it Original?

Copyright will only protect original work. Work will only be considered original if it is the product of the creator’s own intellectual effort. Therefore, if the design plan was very common or you can prove that there was no intellectual effort exerted in drawing the designs, copyright may not even subsist in the work. In reality, however, this would be difficult to prove.

4. Can You Ask for Permission?

The copyright owner can give you permission to use their work, through a licence or assignment. The architect may be happy to licence or assign their copyright to you. It will probably come at a price, but will be less expensive than getting sued in court.

Licence Allows another person to use the copyright material without transferring ownership. This allows both the copyright owner and the licensee to use the copyright material. A licence can be exclusive, non-exclusive or subject to various terms, so it is important to have your lawyer look over the licence agreement.
Assignment A transfer of ownership. This will transfer all the exclusive rights of the copyright material to the assignee. Although an assignment provides significantly more rights, it may still be subject to certain limitations.

Potential Damages for Copyright Infringement of Building Plans

If a court finds that you have infringed on your architect’s copyright, they could make several orders against you.

Type of Order When It Would Apply
An injunction to restrain you from continuing the infringing conduct This would only apply if the house was not yet completed.
To pay the copyright owner compensation for the damage you have caused in infringing In considering the damages available for copying the plans of a house, these could be anything from the time spent in preparing the designs to the costs associated with the final construction of the house.
Additional damages If there was flagrant infringement. For example, if the architect asks to see the building plans but you ignore the request, thinking that copying the plans would be less expensive than seeking permission.

Key Takeaways

If you wish to use or adapt your architect’s work, the best approach is to ask first. If the architect refuses your request, this does not mean that you cannot use the underlying ideas. You just need to ensure that your new architect’s work is their original expression, not a copy of the former architect’s plans.

If you are changing architects and are concerned about copyright infringement of building plans, call LegalVision’s IP lawyers on 1300 544 755 or fill out the form on this page.

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