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Insights

The facts

Mr Coles and the Bredens were competing to purchase a particularly distinct house. Mr Coles was ultimately the successful purchaser and, due to concerns the house design may be imitated, he had the copyright of the original plans assigned to him from the building designer.

The Bredens engaged the builders of Mr Coles’ house to build a similar house in the same estate, about three houses away. Mr Coles objected to the construction and indicated he held copyright of the plans however this was to no avail.

The Bredens proceeded to construct a residence with the same design features as Mr Coles’ property. Mr Coles commenced action seeking an injunction, damages and an order for delivery up of the infringing copies of the plans.

The case

The Court was required to determine:

  • Whether the building designer was the copyright owner of the plans in circumstances where the original owners of the property had given him sketches of their vision for the house.
  • Whether the assignment of copyright was effective.
  • Whether the Breden house plans were a reproduction of the original house plans.
  • What remedies should be awarded.

The decision

The Court determined that the building designer held copyright in the original house plans as he had employed significant independent effort in drafting and they were substantially different to his client’s ideas.

It was found that this copyright had been effectively assigned to Mr Coles and he had the right to take action to enforce his rights. Both the Breden plans and their constructed home were held to be a reproduction of a substantial part of the original house plans and infringed the copyright held by Mr Coles.

To remedy the breach of copyright the Court ordered that the builders and the Bredens were to change significant parts of the house, including changing the distinctive appearance of the roof and windows.

The court allowed the Bredens to retain the house plans as there was no suggestion that the plans were likely to be used for repeat infringing construction and the plans would likely be required by the builders to perform future work on the house.

Damages are yet to be decided, but the Court noted that it favoured a large award of damages since the Bredens continued to build a nearly identical house even after being notified by Mr Coles of the copyright infringement.