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.
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