When House Designs Look Alike – What does the law say?

Is It Copyright Infringement?

Architectural Copyright Series Part 3

Two houses. Similar designs. But has anyone copied?

Imagine walking through a display home and having an uncomfortable feeling of déjà vu.

The staircase looks familiar. The rooms are arranged in much the same way as a house you designed. Even the general flow of the building seems remarkably similar.

You might wonder whether someone has been taking rather more than inspiration from your work.

But is that copyright infringement?

At our firm, we regularly encounter questions about architectural copyright, particularly where builders, designers or homeowners believe that their plans have been copied.

Sometimes the similarities appear obvious. Other times, the differences are just as striking.

The difficulty is that architectural copyright disputes are rarely as straightforward as placing two floor plans side by side and comparing them.

Australian courts have considered some fascinating disputes involving project homes, architectural drawings and competing builders.

Two particularly interesting decisions are Inform Design and Construction Pty Ltd v Boutique Homes Melbourne Pty Ltd [2008] FCA 912 and Tamawood Limited v Henley Arch Pty Ltd [2004] FCAFC 78; (2004) 61 IPR 378.

Both demonstrate how complicated these disputes can become.

In this third article in our architectural copyright series, we look at what happened in these cases, the questions they raised and why obtaining legal advice early can be so important.

As always, we explain the law in legal ease, not legalese®.

Case 1: Inform Design v Boutique Homes: Architectural déjà vu?

The dispute in Inform Design and Construction Pty Ltd v Boutique Homes Melbourne Pty Ltd [2008] FCA 912 concerned competing residential building designs.

Inform Design had developed two-storey project homes known as the Urban and the Seasons. Boutique Homes subsequently developed a house design known as the Villa View.

Inform believed that Boutique’s design was strikingly similar to its own.

Among the features attracting attention were the arrangement of rooms, the central staircase and the positioning of various living and service areas.

To an observer, the similarities might have appeared significant. But the dispute raised a much more difficult question.

Does the fact that two houses look alike mean that one builder has copied the other?

Inform commenced proceedings in the Federal Court, alleging copyright infringement.

Boutique denied copying and maintained that its design had been developed independently.

The Court heard extensive evidence about the history of the designs, the people involved in creating them and how the plans had evolved over time.

There were architectural drawings, expert opinions and competing accounts of the design process.

One particularly interesting aspect was that Boutique relied on evidence showing how its plans had developed through successive designs and revisions.

Inform, meanwhile, pointed to similarities it considered too significant to be coincidental.

Interestingly, Justice Weinberg visited both homes himself. Despite Inform’s expert suggesting he would feel a sense of familiarity, the Judge observed:

“I did not experience … a sense of déjà vu when entering the Villa View.”

Inform also had to show the copying and the fact that that the two homes were objectively similar was not enough.

The judge made this clear – Inform had to prove that the similarity resulted from copying, whether conscious or subconscious.

Ultimately, Justice Weinberg dismissed Inform’s claim.

He accpeted the evidence that Boutique’s design had been independently created.

The case shows that architectural copyright dispute can turn on evidence that may not be apparent from looking at the completed buildings.

It also raises some interesting questions.

1. What if the designers had visited each other’s display homes? What if a particular design had appeared in widely circulated advertising
2. What if the plans had been prepared by several different people over a number of years?
3. Would any of those circumstances change the legal analysis?

The answers depend on the evidence and the particular circumstances.

That is precisely why these disputes require careful legal assessment.

Case 2: Tamawood v Henley Arch – Simple home design or legal battleground?

Another important decision is Tamawood Limited v Henley Arch Pty Ltd [2004] FCAFC 78; (2004) 61 IPR 378.

This case also concerned copyright in project-home designs, but it raised a somewhat different set of circumstances.

The underlying litigation involved competing residential building plans and allegations that Henley Arch’s designs had been reproduced in plans prepared by Tamawood.

One aspect of the dispute concerned a homeowner who had inspected a Henley display home and obtained a brochure showing its floor plan before engaging Tamawood to prepare plans for her own home.

Tamawood started from one of its own designs and modified it according to her instructions.

The trial judge found that her requested changes had been drawn from the Henley design.

Questions arose about the relationship between the original plans, the homeowner’s instructions and the resulting design.

The matter eventually reached the Full Federal Court.

The Full Court upheld the finding of infringement in relation to the homeowner’s plans and house.

This was so even though the trial judge was not satisfied that anyone at Tamawood knew the changes came from the Henley design. And this is the interesting part – the homeowner herself was also found to have infringed.

By contrast, a majority of the Full Court overturned a separate finding concerning a second Tamawood design.

That design had been created to compete with another Henley home, but the majority held it did not reproduce a substantial part of the Henley plan.

The litigation required consideration of the similarities between architectural plans and the circumstances in which designs were prepared.

The Full Court’s discussion of these issues has become an important reference point in Australian architectural copyright law.

One of the difficulties identified by the Court was that project homes often share many familiar features. As Justices Wilcox and Lindgren put it:

“The idea-form distinction, often elusive, is particularly so in the case of project homes.”

As readers might know, kitchens tend to be located near dining areas. Bedrooms are commonly grouped together. Bathrooms, staircases and living areas are arranged to meet practical needs.

Builders might work within similar block sizes and expectations.

But where does ordinary design practice end and potentially unlawful copying begin?

That question is not necessarily answered by identifying a particular number of similarities or differences.

Nor is the answer always obvious from examining the final building.

The Tamawood litigation demonstrates why the circumstances in which a design was developed may be just as important as the finished product.

Why are project-home disputes so difficult?

Consider how many modern Australian homes share similar characteristics.

An open-plan kitchen and living area, four bedrooms, two bathrooms, an alfresco entertaining space and a double garage are hardly unusual.

Yet the way those elements are arranged may reflect considerable architectural work.

So when two designs contain similar features, how does the law distinguish between ordinary design conventions and the reproduction of protected creative expression?

The Copyright Act 1968 (Cth) provides the legal framework.

Section 10(1) defines artistic works to include drawings, such as house plans, as well as buildings and models of buildings. Section 32 deals with when copyright subsists in original artistic works.

Section 21(3) addresses reproduction between two-dimensional and three-dimensional forms, while sections 31(1)(b) and 36(1) concern the copyright owner’s exclusive rights and infringement.

Section 14(1) provides that reproducing a substantial part of a work counts as reproducing the work.

However, applying these provisions to a particular architectural dispute is far from mechanical.

The courts must consider legal principles developed across numerous decisions, together with the evidence relating to the particular designs.

What may appear to be a straightforward case of copying to one person may look quite different once the complete design history is examined.

What if only part of the design looks similar?

This is another question that frequently arises.

Suppose two houses have different façades, different dimensions and different rooflines, but their internal layouts bear a striking resemblance.

Or perhaps the external appearance is remarkably similar, while the internal arrangement is quite different.

Does that matter?

What if the similarities concern only a staircase, a distinctive entrance or the relationship between particular rooms?

And what if a design has been altered several times before construction?

These are not questions that can reliably be resolved by applying a percentage test or counting the number of changes.

The legal concept of a substantial part, together with the evidence concerning the creation of the designs, may require detailed consideration.

What if several people worked on the plans?

Architectural designs rarely emerge fully formed from one person’s drawing board.

A project may involve architects, draftspeople, building designers, engineers, contractors and clients. Plans may be revised repeatedly as a project progresses.

A client may suggest changes. A draftsman may prepare new drawings. A builder may adapt an existing design to suit a particular site.

If a dispute later arises, the history of those contributions can become important.

Who created the original design? Who made the subsequent changes? What materials were available to each person? What contractual arrangements governed the project?

There may also be questions about copyright ownership and licensing under sections 35 and 196 of the Copyright Act 1968 (Cth).

A copyright dispute may therefore involve much more than the appearance of two houses.

The hidden cost of getting it wrong

Architectural copyright disputes can have significant commercial consequences.

For a builder, an allegation of infringement may affect an ongoing development, relationships with clients or the ability to continue using a particular design.

For an architect or designer, suspected copying may involve years of creative work and potentially valuable intellectual property.

For homeowners, a dispute may arise after substantial money has already been spent on plans, approvals or construction.

There can also be questions about injunctions, damages and other remedies under section 115 of the Copyright Act 1968 (Cth).

However, the availability and appropriateness of any remedy will depend on the circumstances.

Why looking at the plans is only the beginning

One of the most interesting things about architectural copyright litigation is how much can depend on what happened behind the scenes.

The final plans sometimes only part of the story.

The history of the design, the relationships between the parties, the contractual arrangements and the available evidence may all influence the legal outcome.

Two disputes that appear almost identical on the surface may involve very different legal considerations.

So when does inspiration become infringement?

It is a fascinating question, but not one with a universal answer.

Architecture necessarily involves drawing on established styles, building practices and design conventions. At the same time, original architectural work can represent a substantial investment of time, skill and creative effort.

Lawyers must navigate all of these things and the decisions in Inform Design and Tamawood illustrate why the dividing line is not always clear.

More to come in our architectural copyright series

This article is Part 3 of our series exploring architecture and copyright in Australia.

In Part 1, Architecture and Copyright: Who Owns the Design?, we introduced copyright protection for house plans, buildings and architectural drawings.

In Part 2, Moral Rights in Architecture: Can You Change an Architect’s Design?, we examined the personal rights of architects and the issues that may arise when buildings are altered or demolished.

In future articles, we will explore further disputes involving builders, designers and homeowners, including questions about using plans prepared by another architect and the complications that can arise when a building project changes hands.

The aim of this series is to highlight the legal issues that people may not realise exist, rather than suggest that complex copyright disputes can be resolved by following a few general rules.

How Sharon Givoni Consulting can help

We assist architects, building designers, builders, property developers and homeowners with architectural copyright, intellectual property ownership, contracts and infringement disputes.

These matters are rarely straightforward. A design that appears to have been copied may raise difficult questions about originality, access, ownership and the development of the plans.

Likewise, receiving an allegation of copyright infringement can be concerning, particularly where construction is underway or substantial commercial interests are involved.

If you believe your architectural design has been copied, or someone has accused you of copying theirs, we encourage you to contact us before taking further steps.

At Sharon Givoni Consulting, we explain the law in legal ease, not legalese®.

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Please note the above article is general in nature and does not constitute legal advice.

Please email us info@iplegal.com.au if you need legal advice about your brand or another legal matter in this area generally.