Architects, designers and others will be interested in
the recent case
Coles v Dormer and Ors  QSC 224 where the Judge
ordered modifications to the roof, visible exterior windows and
stone edge trim of a newly built house because of copying by the
builder and the builder's client of the claimant's house in
Port Douglas, Queensland.
The background was that the claimant had purchased the home from
the original owners who had come up with ideas and engaged an
architect/building designer to implement them. The architect spent
more than 100 hours coming up with detailed plans and modifying the
plans to comply with engineering advice.
When the claimant bought the house, having fallen in love with
it, the under bidders (who also loved the design) asked the
original builders to build them a similar house around the corner
on a block of land in the same gated community in Port Douglas
(only a few streets away from the original house).
When he heard this, the claimant approached the architect and
obtained for a modest fee an assignment of the copyright in the
plans. Having bought the house, the claimant wanted to be the only
one to have a house of that design. He warned the under bidders and
builder defendants not to proceed. At first, they indicated they
would show him the plans to ensure his concerns were accommodated
but ended up not doing so. Despite reminders and lawyers'
letters they pressed on regardless and the new house had been
completed by the time the legal case came to trial. The claimant
could see the new house from his home.
The defendants contested all issues including whether there was
copyright in the plans and whether the role of the original owners
meant that they were co-owners of copyright along with the
architect. This argument was rejected with the court finding that
the architect's extensive work was not just a copy of the
client's ideas but gave him an independent copyright (albeit
that the owners might have had their own copyright in their
description of their rough ideas). The court found that the new
house was closely similar to the design of the claimant's home
and therefore the 3D building was an infringement of the 2D plans,
as provided for by the Copyright Act.
The court determined that, while it might appear harsh to the
builders and the owners of the second house, they had chosen to
press on and build the house after being warned of the
consequences, indeed well knowing court action was afoot.
The claimant had established his case and had moved reasonably
quickly in pursuing the claim. He was entitled to be put in the
position he would have been in if there had been no infringement.
While that did not require demolition of the new home, the court
ordered the defendants to promptly make sufficient changes to the
The case is interesting because, while in one sense merely a
conventional application of well understood copyright law, it
on facts which were quite typical in that rough ideas from the
client were the subject of extensive and detailed work by the
professional, the professional was an owner of an independent
copyright in the detailed plans; and
the significant value of copyright in architects' plans in
delivering a powerful remedy of mandatory alterations of a newly
built house, to remove distinctive architectural features.
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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