Who owns the copyright to your plans? Know where you
If a person commissions an architect or a builder to draw
architectural plans for them in accordance with their own
"mud map" designs, and even if there is
not much additional design input into the drawing of the
architectural plans, the architect or the builder will own those
However, if the person pays the invoiced fees to the architect,
draftsman or builder for drawing those plans for them, that person
has an implied licence to use the plans for the purpose for which
they were commissioned to be drawn. In other words, they are able
to copy and reproduce those plans by constructing a three
dimensional home in accordance with those two dimensional plans on
the building site for which they were drawn.
This is because under the Copyright Act, the person who creates
novel "artistic" work which includes the drawing
of architectural plans for domestic dwellings, is the owner of the
"work". This means that as the owner of these
plans, only the architect, draftsman or builder who drew the plans
may license those plans to be copied and reproduced to construct a
home from those plans.
People unfamiliar with these rules have unfortunately been the
subject of considerable expense on the construction of their home
in accordance with plans drawn for them. A not uncommon occurrence
is where owners approach one project home builder, have plans drawn
for them to their specifications, receive a costing for the
construction of the home in accordance with those plans and then
shop around until they find another builder to construct the home
for a cheaper price. If the owner then appoints that other builder
to build the home in accordance with those plans, or to plans that
are substantially similar to the first lot of plans, the owners are
infringing copyright ownership of the architect or builder in those
plans. The result is that the owners may end up having to pay the
total construction price to the new builder and a licence fee to
the architect or builder who drew the plans and potentially the
legal costs associated with the infringement.
To add another layer of loss suffered by the owners, the new
project home builder will usually have in the standard Domestic
Building Contract a warranty by the owners that they own the
copyright in the plans brought to the builder plus an indemnity
granted by the owners to the builder to cover any costs associated
with the infringement of copyright in the plans. The owners may
also end up having to pay the legal costs of the builder if he is
targeted in any infringement action. It can be a very expensive
exercise and your "dream home" can suddenly
become a nightmare merely because of a well-intentioned yet
misplaced desire to save construction costs.
Therefore, if you do have plans drawn for you by an architect,
project home builder or a builder and you wish to appoint another
builder to use those plans to build your home, obtain an assignment
of copyright in the plans before you take the next step.
Alternatively, look at the fine print on the preliminary contract
you enter into with the architect or builder upon commissioning the
plans to be drawn. Look for provisions relating to ownership of the
plans and settle the question of ownership before you proceed.
This publication does not deal with every important topic or
change in law and is not intended to be relied upon as a substitute
for legal or other advice that may be relevant to the reader's
specific circumstances. If you have found this publication of
interest and would like to know more or wish to obtain legal advice
relevant to your circumstances please contact one of the named
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