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?
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.
Table of Contents
- What is Copyright Law and What Does it Protect?
- How Might Copyright be Infringed?
- How Can You Avoid Infringing Copyright?
- But everyone does 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.
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
aARON sWEET says
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.
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
By these standards it sounds like any house made in last few decades has breached the copyright that sears has had in the 20s and 30s kit house why well look does your house have a sqare room with a door oh my so did sears!
Interesting perspective Rc – thanks for your comment, hope you’ve enjoyed Undercover Architect.
– Amelia, UA
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  QSC 224 http://archive.sclqld.org.au/qjudgment/2015/QSC15-224.pdf and Coles v Dormer & Ors (No 2)  QSC 28 http://archive.sclqld.org.au/qjudgment/2016/QSC16-028.pdf.
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
Alix @ thebuilderette says
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!
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
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!
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
Mark Engwirda says
You would be surprised at how different ways you can design a home or any building with the same specifications even a 3 bedroom home. If you come up with something really creative or a creative solution to something people will want to copy it. That said I cant believe how many people copy what we have been designing for years, even decades. Best two examples of copyright infringement I have seen is when someone has only changed our title blocks and the rest of the drawings remain the same or when I see designs advertised on the web that are distinctly ours. Its not just home owners and builders but also developers and people who create internet blogs as well.
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?
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
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.
Not many are aware of this, and can get themselves into BIG trouble. Glad you caught it in time.
– Amelia, UA
Joe ritson says
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 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
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?
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
Great article and info- thanks.
We are in a situation where we found the perfect house (display home). It’s with a big name builder however they have just stopped building this particular design (as of yesterday), so we cannot get them to build it for us.
Are we then able to use this design or should we approach them to see if they would sell plans?
That’s tricky isn’t it. I would definitely suggest you discuss it with them – hopefully they’ll be amenable to helping you make it happen given they’re no longer building it.
– Amelia, UA x
Need help. I draw a concept floor plan (in PowerPoint). Than we approach different builders and ask them to give us a quote with suggestions on our plan too. Few of them, used our plan to draw their working plans and gave us quotes. One of the unhappy builder claiming copyright on plan and threatening us. What we should do?
I would suggest getting legal advice. It’s hard to know how much of your original design is in the finished version, and how much the builder can claim copyright on that design as their own. That will assist you with ascertaining the validity of their threat.
– Amelia, UA
Hi Amelia, re your response to Bianca, if we pay $2000 to a building co to do a preliminary design and cost estimate, do we have any rights to claim a license to use part of that design on another plan with another builder? (The first one blew the build budget by 15% and wasn’t interested in finding ways to reduce the cost without making the house smaller all round.)
You’d need to see what the terms of agreement were with the builder in what your $2,000 actually paid for. This is the challenge with working with building companies on the design of your home – it’s rare you can re-use the design or shop it around other builders to get the price down. I blogged about this very topic here. It’s best you check with them, or get legal advice.
– Amelia, UA
Melody A Johnson says
We went to an architect he made our home with my ideas 100%. We found a builder who is now building our home and showing our home to build more of my ideas. What is my copyright status since my husband and I paid the architect to design our home?
In Australia, the standard approach is that the designer owns the copyright, but licenses it to use on your site only. I would recommend checking the specific agreement in place with your architect to understand your obligations, and protect yourself from future risk.
– Amelia, UA
We paid a company to finalise our design and take to town planning to get a permit. We were advised by sales that we could use the plan and permit as we wanted to and they would also quote for the build. I was involved heavily in the town planning. We signed a one page document with no copyright information on it. I believe we have implied license to build on the site as intended.
Most arrangements work such that the designer owns copyright, but provides you with a license to build it on the site it was designed for. Always worth checking though.
– Amelia, UA
Hi, great read. Would I be infringing by supplying a design from a draftsmans I found online to obtain a rough build estimate? Obviously, if I did proceed with the build, i would seek consent to use the design and pay the applicable fees?
You may want to check first whether you can license the design – it’s not a given that someone will permit you to do this with their copyrighted design.
– Amelia, UA
Hi Amelia! Looking over these questions have been very helpful. Is it okay to send PDF versions of plans to those companies we may be interested in using when we are ready to build?
Do you mean if you’ve used one of their designs as a base, to confirm they’re ok with what you’ve created from them? If so, I would suggest you contact them before you spend time and money on creating floor plans you may not get permission to build. Hope that helps.
– Amelia, UA
Great article and commentary.
I find myself in a similar position to a couple of others who have posted. I designed a home and have had it reproduced by a designer/architect. The design given to the designer and the design they produced are almost identical, taking into account some corrections made to adjust the scale of the design as my online design tool leaves a little to be desired…
The Copyright Act talks about copyright protection for the artistic work, which in this case is my own. I am thinking that the reproduction of that design (work we have indeed paid for) by a professional does not give them any copyright over the design. It would be great if you could clarify…
I would check your agreement with your designer, and have this discussion with them – especially whether they agree they ‘reproduced’ your design.
– Amelia, UA
I’m a designer in northern calif, we just had some huge fires that destroyed thousands of structures along with a large subdivision. I have a client that lived in that subdivision, that wants me to design a one story house to replace their two story house that burned. I did a preliminary design, the owner, who has met with several builders, say’s my design is similiar to a couple of different builders plans. I looked and there is an argument they are similiar but it’s my design. I looked on line and found that almost all the plans I could find that met the owners criteria (3 bedrooms behind the garge and the living spaces on the left) are similiar in floor plans and in somce cases, elevations as well. how does this work with copyright.
I highly recommend you seek some legal advice about this. We’re not in a position to provide info that’s relevant to your personal situation.
– Amelia, UA