It is possible to love a house too much?

Copyright may exist in house plans.  Copying someone else’s plans without their permission is not a good idea.  John and Edith Breden found this out to their detriment in the recent case of Coles v Dormer [2015] QSC 224 (4 August 2015).

There was a house, a beautiful house, built in Port Douglas for Lance and Moniker Spicer.  James Dormer and Michael Clark were its builders (PDB).  Gregory Skyring, was its designer, drawing up the house plans.  Despite the house’s beauty, the Spicers sometime later decided to sell it – to Stephen Coles.   He was struck by the unique style of the house.  However, so were John and Edith Breden.  They also wanted to buy the house and when they failed to secure it, they decided to do the next best thing, engage PDB to build a house just like it on the same Port Douglas estate.

PDB did not own the copyright in the house plans – Mr Skyring did.  (If you engage a third party to create a copyright work, you normally do not own the copyright unless you obtain a written copyright assignment.)

Mr Coles heard rumours of the copy house and obtained a copyright assignment from Mr Skyring.  The copy house was being built so close to Mr Coles’ house that he could see it from his front doorstep.  He approached PDB and said that he did not want the façade to look the same.  “He did not want someone being able to look at his house and the Bredens’ house ‘and say that they’re exactly the same house like a project home’”.

At this point PDB and the Bredens could have acceded to Mr Coles’ request and there would have been no court case.  But it was such a beautiful house.  Construction continued despite Mr Coles’ repeated protestations.  He finally sued.  Still the defendants did not stop.  By the time of the hearing the exterior was finished and the work was at the final fix stage.

Not surprisingly, the judge found the new house to be an infringement of copyright.

What was surprising was the remedy the judge granted to Mr Coles.  The Bredens argued that he would only be entitled to damages.  But the fundamental problem for Mr Coles was that, every day, he had to see the copy house.  Instead, the court cleverly crafted a remedy to overcome Mr Coles’ problem.  The judge ordered the defendants to remove the external similarities to Mr Coles’ house from the copy house (shape of windows etc).

I have never seen such a remedy in a case of infringement of copyright in house plans before.  The judge was clearly influenced by the conduct of the defendants, continuing on building in the face of Mr Coles’ protests and legal action.  The judge also indicated that the defendants would be likely to have to pay a high amount in “additional damages” (ie punitive damages) which take into account the flagrancy of the infringement and the conduct of the defendants.

Ignoring a letter of demand is always a risky business.  Maybe the plaintiff will sue and maybe it won’t.  Continuing to infringe after being sued for infringement usually means that you believe that you have a strong defence.  Continuing with a fairly clear copyright infringement in order to present the plaintiff with a fait accompli so that the plaintiff is limited to monetary compensation is not something that a court will take kindly to.  The Queensland Supreme Court was not prepared to let this happen.

Mr Coles finally received justice.