Look Design and Development Pty Ltd v Edge Developments Pty Ltd & Flaton [2022] QDC 116

Michael Creedon  |  Hazal Gacka   |  Alisha McGrady

Key takeout

Copyright will exist in building plans where their preparation requires some time, effort and skill.  An infringement in copyright will occur when a building plan is reproduced and there is an objective similarity and a causal connection between the original and reproduced building plans.

Facts

In May 2015, Mr and Mrs Flaton (Flaton) visited a display home belonging to Look Design and Development Pty Ltd (trading as Coast Life Homes).  Flaton engaged Coast Life Homes to prepare two house design plans (Plan A and Plan B).  On 17 June 2015, Flaton informed Coast Life Homes that they were unable to continue pricing discussions and communication ceased.  

On 15 June 2015, Flaton provided a copy of Plan B by email to Edge Developments Pty Ltd (trading as Edge Designer Homes) to construct a house on their vacant land.  Edge Designer Homes produced a plan and by 21 October 2016 had built a house in accordance with that plan.

Coast Life Homes made a claim against Flaton requesting:

• a declaration that Coast Life Homes were the owner of the copyright for Revision Plan A and B;
• damages of $50,000 pursuant to sections 115(2) and (4) of the Copyright Act 1968 (Cth);
• interest; and
• costs.

Coast Life Homes made a similar claim against Edge Developments, requesting an account of profits in addition to the above.

Issues for the court to determine were:

• copyright – Did copyright subsist in Plan A and Plan B and if so was Coast Life Homes the copyright owner according to s 115(1) of the Copyright Act?
• reproduction – Were the Edge Designer Homes plans a reproduction of Plan B from Coast Life Homes and did Flaton authorise reproduction.
• loss of opportunity – Did Edge Designer Homes suffer a loss of opportunity and if so what was the value of that loss.
• damages – How should damages be assessed with respect to any loss of opportunity, additional damages under s 115(4) of the Copyright Act and prior settlement with Edge Designer Homes.

Decision

Copyright 

Coast Life Homes argued that its copyright had been infringed because the plan and house produced by Edge Designer Homes for Flaton were so substantially similar and consistent with its plans that:

• the Edge Designer Homes plan was a direct reproduction of all the features of Plan B by Coast Life Homes; and
• the house built by Edge Designer Homes was in substance a three-dimensional reproduction of Plan B by Coast Life Homes.

The court held that copyright did subsist, as it was clear that its preparation required some time, effort and skill.

Reproduction

In order for reproduction to occur, there must be objective similarity and a causal connection between the two works.

While there was no direct evidence of actual copying, it was uncontested that there was a causal connection, in that Edge Designer Homes was provided with a copy of Plan B by Flaton.

As to objective similarity, the court held that the Edge Designer Homes plan was prepared in infringement of the copyright subsisting in Plan B as:

• there was an overall correlation of layout and dimension in each of the plans; and
• while there were some discernible differences, these were minor and may be seen as adjustments to the replicated Revision B Plan.

The court recognised that although the plan may be regarded as standard in nature, it was necessary to consider that Edge Designer Homes had gained a copy of Plan B when considering support for reproduction.

In order to establish that Edge Designer Homes infringed copyright, it was necessary to determine that Flaton had authorised the infringement of Plan B, in Australia.  The court found that it was inescapable that the direct reproduction of Plan B had occurred as a result of Flaton providing Edge Designer Homes with a copy for that exact purpose.  Coast Life Home’s copyright was clearly marked on Plan B and Flaton had knowingly authorised the substantial reproduction of Plan B.

Loss of opportunity 

The evidence did not support the finding of lost opportunity as it was more likely than not that Flaton would not have contracted Coast Life Homes to build their house.  This was on the basis that Flaton had wanted a family member to perform the electrical work and required a traditional slab, which would not have been available if Coast Life Homes had undertaken the build. 

Damages

In the context of an earlier settlement of $30,000 between Coast Life Homes and Edge Designer Homes, the court awarded nominal damages of $500 against Flaton.  The court held that it was not appropriate to award additional damages under the Copyright Act.