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Copyright and building your new home – how to be legally protected

You want to build a new house.

You’re visiting display villages. You’re looking at floor plans online. You find one that you love – but you don’t like the price, or you’re not sure about that specific building company.

The plan, however, is perfect – exactly what you’ve been looking for!

A local builder in your area says they can build it more cheaply. They can take that plan, get their draftsperson to draw it up and get your approvals, and you can start construction soon – on budget.

You’re so excited! This seems perfect! The plan you want, at the price you want to pay!! Surely it’s ok – I mean, it’s a plan that’s publicly available online?

STOP.

You, and your new favourite builder, are about to break the law.

What if you change 10%? You only need to change it a little to avoid breaking copyright laws don’t you? Right?

Aaaaah, no. Not right. Wrong, in fact. Very wrong.

As an architect, I know that my designs are copyrighted to me – unless I decide otherwise. They don’t have to be marked with a copyright symbol for this to occur. It is inherent in the fact that I designed them. I license my clients to use my copyrighted design on their site. Once, and only for that site.

However, I wasn’t sure if this was the case for all designed work and all floor plans. Does this apply to draftspeople and building designers’ work? Does this apply to floor plans you find online, on the websites of Metricon, or Ausbuild, for example?

So I asked one of my favourite people – and the best person to provide legal info – Jamie White. Jamie is Owner and Solicitor Director at Pod Legal, and provides expert commentary to many media outlets, is an Adjunct Teaching Fellow for Bond University and does lots of other clever stuff to help businesses and individuals (including me) navigate the legal world.

This was his response. (There is some legal jargon – but Jamie has kindly explained with very clear examples so you can be informed for your situation!)

The expert legal lowdown from Jamie White, Solicitor Director, Pod Legal

Are you planning on one day building your dream home? Or are you an architect, designer, draftsperson, or builder, who helps to make dream homes come true?

If so, paying attention to this article could save you some serious headaches down the track.

Picture this: Jack and Jill are looking to build a house. They browse the catalogues and check out the display homes of numerous builders, and obtain quotes from two of them. Jill loves a floor plan in Builder A’s catalogue, but Builder B can construct a house according to Builder A’s floor plan for a fraction of the price. Jack and Jill are free to go with Builder B using Builder A’s floor plan, provided a few alterations are made, right? Wrong.

Why? Copyright law operates to prevent people from copying or reproducing other peoples’ creations in any material form, without first obtaining their consent.

Copyright is very important in the building and construction industry. It protects the rights of those who create new and innovative things. The following will explain exactly what copyright is, how it works, and how you can avoid infringing it.

What is Copyright Law and What Does it Protect?

Copyright ensures that people who create and construct new things are properly paid for their creations. It provides an incentive for people to continue to design and make cool stuff, which makes life better for everybody.

Contrary to common belief, copyright does NOT exist in an idea as such. Rather, copyright subsists in, and protects expressions of ideas. (In the legal world, “subsists” means that copyright remains in force, or in effect – basically it exists in those drawings).

For example, copyright would exist in:

  • a drawing of a floor plan, but not the idea that a house should contain three bedrooms and two bathrooms; and
  • an architectural model of a house, but not in the idea of a double-storey house with a picket fence.

Therefore, we can safely say that copyright would subsist in, and protect, Builder A’s floor plan.

How Might Copyright be Infringed?

When copyright exists in certain subject matter, the creator of that subject matter automatically has the right to deal with that subject matter in certain ways. Essentially, this means that only the creator of the subject matter may copy or reproduce it.

The only way that another person may make a copy of that subject matter is if the creator transfers the ownership of copyright to another person, or grants a licence to that person to copy or reproduce the subject matter.

If you copy or reproduce a substantial part of another person’s creation without consent, then you will have most likely infringed upon the copyright which subsists in it.

For example: If Jill takes Builder A’s floor plan to Builder B, who builds a house according to it, copyright will be infringed by both Builder A and Jill.

But what if Builder B changes the floor plan a little bit? Well, it depends on how different the end result is from Builder A’s original floor plan. If, after the house is built, you can say that a substantial part of the floor plan is recognisable in the house, again, both Builder B and Jill will have infringed Builder A’s copyright.

But what constitutes a ‘substantial’ part of the floor plan?

Basically, if, after considering all of Builder B’s ‘new’ house, there are distinctive, or important parts of Builder A’s plan which remain, even if they are small, it is likely that copyright will have been infringed.

[UA Note: See – no 10% rule! In fact, you could change 90% and have only 10% of the existing design still remain, but if it’s significantly recognisable as belonging to the existing design, you could be infringing copyright]

How Can You Avoid Infringing Copyright?

The old adage: if something doesn’t smell right, it probably isn’t, is a fitting one. When dealing with a person’s intellectual property, including copyright, honesty is the best policy. If you wish to use or adapt another person’s design, then all you need to do is ask. While you may be required to pay a licence fee, this is probably better than the amount you may need to pay in future legal costs, if somebody discovers your infringement of copyright.

Thank you Jamie!

Jamie also shared some information on Moral Rights – another aspect of copyright law that relates to ‘attribution’ … whose name is on the design, and what that means. I’ll share more on that in the next blog.

But everyone does it …

Everyone does this don’t they though? And if your builder is willing to turn a blind eye and build you your home, surely it’s ok?

And surely you won’t get found out even if you do copy it?

Well, it’s entirely up to you of course.

However, there are lots of cases where homeowners and builders have had to pay legal costs and additional damages where they’ve been found doing this. (If it interests you, there are a few cases in the links below).

And I’ve found that builders who are willing to do this, and turn a blind eye to something they know they shouldn’t be doing … well, it may be a good test of how well they might treat you in the process of building your home too.

Remember, truckloads of your building process will be made publicly available, and can be readily accessed by anyone who wants to check. Your approval will probably exist on your council’s website, or somewhere else.

Tread carefully. You may get caught out. And the last thing you want after investing every possible dollar you have in creating your dream home, is to deal with the stress and legal costs for infringing copyright.jamie-white-pod-legal

A big thank you to Jamie for providing such useful info about copyright. You can contact Jamie here:

Jamie White – Pod Legal | website:  CLICK HERE

Links with further info on copyright …

In a split decision, the Full Federal Court found that a building developer (Habitare) infringed copyright in building plans created by building designer (Tamawood) >>>  CLICK HERE

The Federal Court of Australia has sounded a warning to persons in the building industry that copying building plans of another builder may prove to be an expensive exercise. >>> CLICK HERE

It is important to keep records of all designs to demonstrate how they came about. >>> CLICK HERE

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Comments(19)

  • April 12, 2016, 2:43 pm  Reply

    Amelia, thank you for this valuable insight. It is surprising how many of us in the industry thought that 10% change was enough to avoid breaching copyright.

    • Amelia
      April 12, 2016, 3:22 pm

      Hi Aaron
      Thanks for your comment. It’s information I’ve been wanting to provide clarity around for some time, so I was very grateful that Jamie White of Pod Legal could offer his legal input. It is certainly a consistent belief that copyright can be avoided fairly simply – yet not actually the case. I’m glad you found the blog helpful.
      – Amelia, UA

  • April 12, 2016, 3:32 pm  Reply

    Very good article Amelia.

    A very recent set of cases from the Queensland Supreme Court demonstrate the folly of copying plans; see Coles v Dormer & Ors [2015] QSC 224 http://archive.sclqld.org.au/qjudgment/2015/QSC15-224.pdf and Coles v Dormer & Ors (No 2) [2016] QSC 28 http://archive.sclqld.org.au/qjudgment/2016/QSC16-028.pdf.

    • Amelia
      April 12, 2016, 3:37 pm

      Hi Brent,
      Thank you for your comment and feedback. I really appreciate the additional links to the other case too … as an architect, I wish that these legal notes included the floorplans of both parties so I can see the similarities between them!! The damages awarded of $70,000 are not to be sneezed at are they?!
      – Amelia, UA

  • April 13, 2016, 4:14 pm  Reply

    We’ve had this happen to us – plans done for the client then they decided they “weren’t going to go ahead”. 2 years later we drive past their block and there’s the house. Sent them a bill for $3k (obviously massivly undervalued but at least it was something) and of course they refused to pay. What made it extra shitty was that this client worked in a creative field herself!

    • Amelia
      April 15, 2016, 10:58 pm

      Hi Alix
      Thank you for your comment. I’ve had a similar thing happen also. Totally frustrating. I’m very fortunate that the clients who work with me via Undercover Architect are all especially awesome!
      – Amelia, UA x

  • Margot
    August 23, 2016, 10:33 am  Reply

    How many variations on three beds, two bath, two living areas can a plan go? Plan it for superior passive solar design & it narrows further…..just saying!

    • Amelia
      August 23, 2016, 10:57 am

      Hi Margot,
      Thanks for your comment. Yes, when you look through the catalogues of many project home builders, you will see similarities in how the designs have been put together.
      That still doesn’t allow you to use them without permission though, or make minor changes in order to use them.
      I have a colleague who heads up a very large home building business. They’ve had several instances of copyright challenge on floorplans of theirs. Each time, they have to demonstrate that they actually CREATED / DESIGNED the floor plan from scratch. So they keep very good files of how their inhouse designers come up with their homes.
      Once, they failed in their case because they’d had a digital server failure during the creation of that design, and couldn’t show the development of it to a finished house plan in their catalogue.
      Yes, you need to get caught. Yes, floor plans can be similar. Yes, people do it all the time. It doesn’t make it legal, or the right thing to do.
      And you can end up paying significant financial damages, plus the legal headaches of dealing with the situation, if you do get found out and challenged. Which is all far too stressful to deal with after moving into your finished home.
      – Amelia, UA x

  • alli
    November 24, 2016, 8:40 am  Reply

    We found a house plan that we like from a builder and hope to build it with the same builder. We found a similar house plan online that we like too, but is too large. Can we ‘borrow’ ideas from the other plan? In particular, we like the exterior & hall plan of the 2nd plan but also the interior of the builder’s plan (plans are quite similar). Should we buy the 2nd plan & have it modified?

    • Amelia
      November 24, 2016, 2:31 pm

      Hi Alli,
      Thanks for your comment. It’s hard to say where ‘borrowing’ might cause copyright issues. If you’re replicating ideas, spaces, or rooms, then it can broach copyright.
      I would always recommend buying the floor plan, because that then gives you the license to use it on your site.
      Best wishes for your new home!
      – Amelia, UA x

  • Tim
    February 21, 2017, 8:59 pm  Reply

    wow, there’s a can of worms I was not aware of. Point noted as I design changes to my house, and yes have been looking over floor plans from a) other project builders (the big ones) and b) home up for sale where floor plans are displayed online.

    • Amelia
      February 22, 2017, 10:14 pm

      Hi Tim,
      Not many are aware of this, and can get themselves into BIG trouble. Glad you caught it in time.
      – Amelia, UA

  • Joe ritson
    March 5, 2017, 1:26 pm  Reply

    Hi Amelia,

    I am a builder in townsville and have another builder wanting to sue for copyright and claiming lost profit and damages ($70K). What happens if a client comes into multiple builders and tells them their design for their corner block and everyone draws it up to quote. Is it true its the clients idea therefore they are the creators and own copyright?
    thanks
    Joe

    • Amelia
      March 5, 2017, 11:46 pm

      Hi Joe,
      Thanks for your comment. Of course, my first recommendation would be to suggest seeking advice from a lawyer well versed in copyright law. From my understanding, the idea isn’t what is copyrighted, it’s the design and execution. I’ve seen other builders be challenged when their design is similar to another builder’s … and they only way they’ve been able to argue their case is by showing the development of the design from original concept into working drawings. One builder had a computer crash during that process, lost the record of design development, and only had the end drawings – and hence could not prove they hadn’t copied the design.
      Best wishes, I’d be interested to hear how things progress on this.
      – Amelia, UA

  • Ryan
    March 24, 2017, 9:01 pm  Reply

    Hi. I’ve been drawing up my own floor plans. What steps should I be taking to protect myself from builders, designers or architects that I show my plans to taking my designs, then potentially suing me for copyright infringement? If a designer or architect or builder modifies my design, who then owned the copyright?

    • Amelia
      March 28, 2017, 8:06 am

      Hi Ryan,
      This is a tricky situation, because how much of your ‘original design’ will remain after working with designers is unknown. Clients often bring me floorplans as briefs for what they’re seeking, and we never end up with the same version of it after a design process.
      I would be sure that, in conversation with anyone you’re seeking to hire, that you discuss this before commissioning them. With any design work done with a professional, as long as you’ve paid for any services in full, any designer owns the copyright, but you are licensed to use it on your site. So it may not be an issue anyway in the way you’re anticipating.
      – Amelia, UA

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