Australian Court Orders Copy House to Undergo Significant Alterations: A Recent Decision on Copyright Infringement in Building Designs

Earlier this week the Supreme Court of Queensland (Court) delivered its judgment in the case of Coles v Dormer & Ors, a copyright infringement case about home designs. The Court found that a house built in an exclusive Port Douglas estate was created by copying the design of another house built close by in the same estate, and ordered that the infringing house undergo significant alterations to change its appearance.

John and Edith Bredens were prospective buyers of a home in The Sands, which had been constructed by Port Douglas Builders in accordance with plans created by designer Gregory Skyring. The Bredens were not successful in purchasing the house, which was ultimately bought by Stephen Coles, who gave evidence that he was particularly taken with the unique style of the house.

When Mr. Coles heard that the Bredens had engaged Port Douglas Builders to build them a house nearby in the same estate that was a copy of his house, he promptly acquired copyright in the design for his house from Mr. Skyring, as he wanted to ensure that his house was the only house of its design in the area. Mr. Coles put the builders on notice that he owned copyright in the design and objected to the copy house being constructed. Despite this, Port Douglas Builders proceeded with constructing the house for the Bredens in accordance with the plans for Mr. Coles’ house.

When construction was in its initial stages, Mr. Coles issued proceedings against the Bredens and Port Douglas Builders for infringement of copyright. By the time the matter went to trial earlier this year, construction was largely complete and in the final stages. The defendants did not dispute that they had referred to the plans for Mr. Coles’ house, however they denied that the Bredens’ house reproduced the whole or a substantial part of that design and that copyright had been infringed. The defendants also argued that copyright did not subsist in the plans for Mr. Coles’ house in any case, as the design was not an original artistic work for copyright purposes as, they alleged, it did not elicit any new underlying idea.

The Court found that the plans for Mr. Coles’ house were an original work protected by copyright, which was owned by Mr. Coles, and that the defendants had infringed that copyright by creating the plans for the Bredens’ house and the house itself. The Court pointed out that originality for the purpose of copyright subsistence does not require originality in the sense that the design need be new or novel, but only that the expression of the work originated with its author and was not copied from elsewhere. This is a relatively low bar.

The Court found that “there are extensive and significant points of replication and similarity” between the Bredens’ house and Mr. Coles’ house and that “in short it is obvious that copying on a substantial scale must of occurred”. The Court concluded that, given the pervasive elements of similarity, the Bredens’ house and plans reproduced a substantial part of the plans for Mr. Coles’ house. The reproduction was not limited to the floorplan but also extended to the façade, which was of particular concern to Mr. Coles as he wanted his house to appear to be exclusive. Mr. Coles gave evidence that every time he walked out of his house, he could see the Bredens’ house and the uniqueness of his house was ruined.

In addition to an order that Mr. Coles is entitled to an award of damages or an account of profits from the defendants, at his election, the Court also ordered that the defendants must cause the Bredens’ house to undertake significant external alterations to restore Mr. Coles to the position he would have been in but for the infringement – that is, to restore the ‘uniqueness’ of his home in the area. The alterations ordered include:

• removing the house’s dormer roofs
• removing the exterior arched and circular windows and replacing these with rectangular or square windows
• grinding away the stone edge trim at the corners of the house to render these flush.

This decision serves as a warning to operators in the building design industry and demonstrates that copying another’s design could result in not just orders to pay compensation, but also orders requiring the resulting building undergo substantial alterations at the copyist’s cost. This is another reminder of the risks involved in referring to another builder’s or designer’s work when coming up with new designs.