"Copyright" is a property right recognised in
Australian law as a part of what are known as "intellectual
property rights". Copyright applies particularly to
architectural plans and building.
Following previous successful copyright actions against Metricon
Homes and Carlisle Homes, Porter Davis Homes has now had a third
copyright victory against another builder, Dennis Family Homes.
Porter Davis Homes issued proceedings in the Federal Court of
Australia against Dennis Family Homes alleging that Dennis Family
Homes had infringed the copyright by copying the "alfresco
quadrant" feature of the Porter Davis Homes design. That is,
the combination of a rumpus, family, kitchen and meals areas around
the alfresco, all under a single roof-line.
Justice Dodds-Streeton recognised that the creation of the house
design incorporating an alfresco quadrant involved a prolonged and
laborious design process sufficient to confer originality upon
those designs. The Judge found that the alfresco quadrant designed
and built by Porter Davis Homes was "both striking and
distinctive" and differed significantly from houses which
included an alfresco that pre-dated the design and construction of
the Porter Davis Homes alfresco quadrant. Accordingly, Porter Davis
Homes was found to hold copyright in both the designs and the homes
of the alfresco quadrant.
The Judge also found that Dennis Family Homes had access to the
Porter Davis Homes' designs and homes and would have been aware
of the commercial success of the alfresco quadrant. It was held
that Dennis Family Homes used this access to reproduce an almost
identical alfresco quadrant.
The Judge therefore ruled that Dennis Family Homes had infringed
the copyright which Porter Davis Homes holds in the designs and
homes by reproducing the alfresco quadrant in their designs and
subsequently building, marketing, promoting and selling homes
constructed in accordance with these infringing designs.
The Federal Court decision means Porter Davis Homes will now be
able to pursue damages or an account of profits (being a portion of
the profits it has earned for each individual house built and sold
according to its design) from Dennis Family Homes, as well as its
legal costs and interest.
This decision, like the previous decisions in the cases against
Metricon Homes and Carlisle Homes, draws on the Copyright Act
1968. Material that is protected by copyright includes
drawings and sketches of house plans, blueprints and floor layouts.
This is especially relevant to architects, designers, draftsmen,
builders and others in the building industry who need to remain
aware of the legal consequences of referencing or reproducing a
A final note of warning to Managing Directors and Product
Development Managers – it may not just be the company
which is found liable for copyright infringement; it could also be
you. In the case of Metricon, the Court held that both the Managing
Director and the Product Development Manager had authorised the
copying of the alfresco quadrant and so were personally liable to
Porter Davis Homes for copyright infringement.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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