Australian Court Orders Homeowners To Physically Alter Exterior Of 'Infringing' House

from the putting-the-(c)-back-in-'construction' dept


The defendants shall promptly take the following action in respect of the following external features of the third defendants’ house at lot 23 The Sands Estate Port Douglas:

(a) Feature: Dormer roofs

Action: Remove the dormer roofs.

(b) Feature: Arched and circular windows at the front of the house and such other exterior arched and circular windows as are ordinarily visible from public paths or streets.

Action: Remove and replace with rectangular or square windows and any external remnant space, appearance or outline of the arched and circular window shapes be filled and concealed by rendering.

(c) Feature: Stone edge trim corners at the front of the house and such other stone edge trim corners as are ordinarily visible from public paths or streets.

Action: Grind, cut away or remove the areas of stone edge trim to the extent necessary to render those areas flush with the walls and fill and conceal by render any remnant appearance or outline of the stone edge trim.

This is the opening of a recent decision (sent in by a unnamed Techdirt reader) by the Queensland (AUS) Supreme Court — the end result of a copyright infringement lawsuit alleging that two builders (James Dormer and Michael Clark) worked in concert with a married couple to construct a copycat house. All of this is absolutely true, including the court’s demand that dormer roofs (a fairly common architectural feature, actually) be removed and arched windows be converted to rectangles or squares to turn the house from an infringing edifice into something only faintly echoing the original source.

The events behind this outcome are almost comical. Plaintiff Stephen Coles purchased a house designed by George Skyring because he liked its unique features. Defendants John and Edith Breden also liked the house’s unique features, but their bid for the house fell short.

So, the Bredens contacted Port Douglas Builders (who built the home Coles purchased) to construct them a replica version, utilizing the Skyring blueprints. Coles somehow heard about their plan to rob his house of its uniqueness and acquired the copyrights to the design by assignment from Skyring. He told the builders about his acquisition, hoping that this would alter their plans (to use unaltered plans). It had no effect. Construction continued. Litigation ensued.

The court doesn’t look too kindly on the defendants’ actions (as can readily be inferred from the terms of the judgment). Coles made it clear he didn’t want to look out his window and basically see “his” house looking back at him. (The Bredens purchased a lot three houses away from Coles’.) He spoke to the construction company directly to express his concerns and — after acquiring the copyright for the plans — asked that the builders provide him with copies of their plans for his approval before construction. PDB’s reps — James Dormer and Michael Clark — agreed to do so… but never followed through.

Mr Clark testified he received a text from Mr Coles that indicated Mr Coles was away and requested the drawings to be scanned and emailed to Mr Coles. Mr Clark testified they decided to not send such a copy. He testified, most unconvincingly, that their preference was to see Mr Coles face to face and that he anticipated Mr Coles would be in touch when he returned or once the plans were submitted for body corporate approval if he did not like them. I infer the unattractive reality is that knowing they had assured Mr Coles they would provide him with their proposed plans they decided to go back on their word, taking a calculated commercial decision to press on without further reference to Mr Coles.

When Mr. Coles returned from vacation, he saw a concrete slab with fittings in place that looked remarkably like the layout for his house. He again contacted PDB and again was ignored. By the time the lawsuit was filed, the Bredens’ new home — Coles House Mk II — was nearly complete.

Because the court finds the two houses — and their underlying plans — to be substantially similar, James Coles wins the case. So, Coles will go back to the unique house he purchased and the Bredens will go back to their version of the same house, which is due to be remixed into un-uniqueness in the near future.

The discussion of the final judgment is also worth reading. The court finds it difficult to apply an injunction considering the replica house has already been constructed. Short of levelling it and forcing the Bredens to start over (which would inflict damages far in excess of what Coles has actually suffered), the court states that altering certain distinctive features is punishment enough and achieves Coles’ original objective: to have a “unique” house. The court also refuses to make the Bredens and the construction company turn over every copy of the original plans, seeing as they might need to be referenced to ensure the ordered alterations can be done without disturbing underlying construction elements.

From the decision, it seems the Bredens themselves had little culpability. How much of Coles’ concerns were passed on to the couple isn’t detailed and they were not asked to testify. This puts them in somewhat of a bad spot if they were unaware. Obviously, the construction company did everything it could to nail down a second sale of the same house (more or less). Passing up the chance to earn another $1,000,000 is hard to do, even when the threat of litigation lingers in the air.

Australia isn’t unique in affording copyright protection to architectural plans and design elements. But it is unusual to see a case being brought by a homeowner rather than a designer and even rarer still to see a copyright judgment result in physical alterations to the exterior features of a constructed residence.

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Comments on “Australian Court Orders Homeowners To Physically Alter Exterior Of 'Infringing' House”

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Anonymous Coward says:

Unfortunately, I have to agree with the owner of the original house/design. The moment the owner of the copyrighted designs notified anyone involved in the constructed of the second home, they should have stopped. Australia isn’t the only country in the world to have copyrighted laws on blueprint designs and this is exactly with the owners of the copycat house did.

Tim should have done his research on this one. It just took me two minutes to do a Google search on this issue because I wasn’t aware that you could copyright architectural designs or blueprints but apparently, many countries, including the United States, have similar laws.

The contractor should have known better and relayed that information to the owners of the second home.

Anonymous Coward says:

Re: Re:

Legally the owner does have standing to sue, but I think it is still complete bullshit as another unintended consequence of terribly designed laws that have been written too broadly.

The law should have been written to ONLY apply to the architect creating the construct and NEVER to the home owner so that they can bash other home owners with it.

Does this smarmy bastard have a custom built car? I hope everything he owns now becomes an eyesore because he constantly sees another person with them!

AJ says:

Re: Re: Re:

If a homeowner buys a set of plans from me off my web site, then I retain all rights to the plan’s and they build the house right from my plans.

If a homeowner employ’s me to design a house for them, specifying design criteria, general layout, and custom features… then I am simply a draftsman and THEY are the designer at that point.. it’s really there creation, I just put it on paper for them. They should own the rights no?

IMO, this sounds fair and correct to me. Am I missing something?

AJ says:

Re: Re: Re:2 Re:

Perhaps I misunderstood.

“The discussion of the final judgment is also worth reading. The court finds it difficult to apply an injunction considering the replica house has already been constructed.”

When someone says “replica”, I’m thinking an exact or near exact copy, not borrowing common traits.

Anonymous Coward says:

Re: Re:

You are a fool.

Many houses and structures share designs, aesthetic decisions, architectural plans, and engineering choices because THEY ARE FUNCTIONAL OBJECTS!

Many homes LOOK the way they do because of the physics involved on making a home that is built to code.

So if you let people start claiming infringement over building plans, then you’ve just opened the gate for people to claim infringement over interior design choices and engineering decisions.

It’s not like it’s a fucking phone with a rectangular screen. It’s something people have to live in you chucklefuck.
Fuck if this guy wanted to build a ‘similar’ house, it’s not the court’s job to intervene unless it’s not up to code or gross incompetence was involved.

Eldakka (profile) says:

Re: Re: Re:

The suit was over non-functional design aspects.

The suit wasn’t over the fact the other house HAD windows, or HAD a roof. It was over the non-functional, aesthetic aspects of the house.

Say I built a house with a roof that had 37 minarets of varying heights and thicknesses. Randomly scattered over the roof. Ranging from 5cm to 50cm across, and 20cm to 2 meters high. Varying cross-sectional shapes – some round, some oblong, some square, some penta-hexa-octa-deca-mora-sided. Built with different materials, some red-brick, some white-brick, different types of timber, some pored cement. The minarets served no purpose, they aren’t for hanging, no space inside them for storage, they aren’t meant for bird coops or perches. They are there because I had too much acid^H^H^H^H imagination when I pressed the send button on my “Confirm Final Specifications” email to my builder – just before I headed off on a 6-month around-the-world pub-crawl^H^H^H^H^H^H^H^H^H bender^H^H^H^H^H^H no computers/phones allowed eco-holiday expecting to find a completed home when I got back.

Now if someone else built a house with an identical set of 37 minarets, same positions, same sizes, same materials, EXACTLY the same except the roof was 2 streets over. I would call shenanigans on them.

But it is a similar principle as to what is happening here. It’s that the second house’s windows had the EXACT SAME non-common non-functional required shape. The EXACT SAME non-functionally required dimensions. The same number of windows in the same positions. The exact same size/shape roof.

If the second house had of JUST had the same roof, or just had the same windows, they’d probably have gotten away with it, the judge would have probably laughed the plaintiff out of court.

But once you combine ALL non-functional aesthetic factors, it’s a straight copy of (for want of a better phrase) artistic non-functional elements.

Now, whether they SHOULD be able to copyright that design, and be able to enforce that copyright, now THAT is a different question.

PS could we get the < del > tag added?

Anonymous Coward says:

Something else seems off here.

From what I understand about this article, the copy of the Skyring blueprints were made before Mr. Coles had the copyright to those blueprints transferred to himself. The actions then taken by the court raise this question…. When a copyright is transferred to someone, does that mean that all then existing copies become illegal?

Because that most certainty seems to be the case in this little legal battle.

Eldakka (profile) says:

Re: Something else seems off here.

I think that would depend on how the copies were made.

1) Were they purchased from the copyright holder?
2) Did the builder ask for a copy from the copyright holder who then complied?
3) Did the copyright holder put any restrictions on the use of the copy when it was obtained ? e.g. for informational purposes and not to be used as plans for actual construction?
4) Did the builder just obtain a copy without the consent of the copyright holder?
5) Where the plans provided for 1 purpose – building of the original house – and then re-purposed, without the copyright holders consent, in the construction of a second house?

From the description I have read of this so far, it seems that the builder of the original house and the ‘copycat’ house was the same builder. Therefore I suggest point 5 above was the likely scenario, therefore the only legal use of the legally made copy of the plans was for the construction of the original house. Once that purpose had been accomplished, the builder was no-longer authorised to use those plans for other construction purposes. Therefore when the builder reused the plans, at that point the copy became an illegal copy.

It’s sorta like buying a piece of software – say MS Office. I purchase that copy, and have the rights to use it on a single computer. However, the retailer I bought that copy from (well, really, the license key) can’t make a copy of the software and then sell that copy on to another customer.

Anonymous Coward says:

Incorrect. Trademarks and copyrights are transferred all of the time between individuals, companies and organizations. Registering it before its produced only enhances protections. It’s not necessary to register the copyright or trademark before its built.

Check out the following article for more information.

PaulT (profile) says:

Re: Off topic, but...

It was always an idiotic argument – of course people would download a car. If you could download a car, you’d have a perfectly working, perfectly new car that’s in physically and mechanically perfect working order, all without depriving the owner of the original of a moment’s use of that car. Most people are dealing with cars the fall far outside of that description. Of course, there’s the matter of payment but that’s a far more complicated argument even if you make the moronic assumption that the word “download” is always followed by the word “free”.

As for the other items, I doubt that human nature would allow for an actual utopia. But, can you imagine a world where people can “download” their basic physical needs such as food, clothing and shelter without money being a primary concern? There’s a lot of people on this planet who would happily do so, and a great many of them would be better off – well, until the aforementioned nature of mankind kicked in anyway.

AJ says:

Re: Re: Off topic, but...

“But, can you imagine a world where people can “download” their basic physical needs such as food, clothing and shelter without money being a primary concern? “

I would like a place like that very much. I could use the 50+ hours a week I spend at work to create things. Art, Music, Love.. but I have to wonder… would human nature allow the bulk of humanity to use all this time that would normal go towards survival for the good of humanity, Or would we fall into a disorganized hateful anarchy?

PaulT (profile) says:

Re: Re: Re: Off topic, but...

“Or would we fall into a disorganized hateful anarchy?”

I’d imagine 3 groups. One who does nothing with the free time and resources and just lies around getting even fatter (and sadly this will likely be a majority). One who works for the betterment of mankind, gathering knowledge, researching sciences, creating great art. The third would not be happy without conquering and destroying and making themselves “greater” than their neighbour even though it achieves nothing.

The true question would be how we deal with that final group.

AJ says:

Re: Re: Off topic, but...

A perfect example is Ark Survival. This game is a survival based, crafting, Dino taming, open world survival game. On the servers with limited resources and/or more difficult harvesting rates and higher usage settings.. The bulk of your time is spent just trying to survive. When you change those settings, and now resources are plentiful and easily gathered, fairly quickly people get bored and resort to hunting each other down and killing each other for sport in very interesting ways.

If this game is any indication, and I’m not convinced it is, of what human nature is… paradise and hell are very closely related to us lol.

Anonymous Coward says:

Next anti-copyright piece, please, and try to make it actually copyright, not battles of The Rich over status symbols.

“PDB’s reps — James Dormer and Michael Clark — agreed to do so… but never followed through.” — If was such agreement, then it’s settled, “copyright” or not.

Totally unnecessary to confirm that dormers are common, so is the second link new tactic to help Google track everyone? I’m seeing Google search and/or re-directs on Drudge too.

Like the re-directed links Google now presents on search pages so that can see which you actually click on, that link has more than enough added characters to uniquely identify and track…

… TO TRACK FOREVER. Have you caught latest “feature” from Snapchat which last week you hailed for deleting messages? Well, now for 99 cents you can replay 3 of them! Yes, they’ve decided to monetize the exact opposite of their supposed basis! Proves that too is stored forever, has been all along. But I do admit is a brazenly “innovative” way to announce the betrayal.

OldMugwump (profile) says:

Design patent vs. copyright

So the blueprints were not copied, yet there was copyright infringement? I don’t get it.

Under US law, I don’t think one could make a successful copyright claim in this case – the blueprints weren’t copied at all (the builder re-used the same blueprints).

If the architect had filed for a design patent then he’d probably have a case.

Maybe Australian law is different.

Anonymous Coward says:

I have to side with Stephen Coles on this one. He contracted someone to design original features for his home. While he didn’t initially register a copyright on the design, he did so when he discovered his neighbor across the street had copied the original design of his home. So, he purchased the copyright of the blueprints and registered them. He didn’t think he would have to obtain the copyrights to the original design.

John and Edith Breden admitted guilt themselves when their bid for the design fell short and so they decided to use the designs anyway. Hate to say it, but they deliberately violated the rights of the design and decided to steal the design anyway by getting the original contractor to add those designs on their home.

They knew what they were doing was wrong but didn’t care. Now, they are being forced to abide by the decision of the court. It serves them right. The court decided that the Bredens violated the copyright of the original owner.

FYI, there is not a time limit on when to file a copyright on a design you paid for, that is unique and original, providing you had proof that you paid for the design and that you own the rights to it. The court simply found in favor of Stephen Coles because he had actually won the bid on the original design and wanted to retain ownership of the original design.

The Bredens got exactly what they deserved.

nasch (profile) says:

Re: Re:

While he didn’t initially register a copyright on the design, he did so when he discovered his neighbor across the street had copied the original design of his home.

Emphasis on past tense. He got the copyright after the copying had already happened. So how could the copying have harmed him?

John and Edith Breden admitted guilt themselves when their bid for the design fell short and so they decided to use the designs anyway.

Admitted guilt of what? Trying to get the same kind of house someone else has? Why would they think there’s anything wrong with that?

PaulT (profile) says:

Re: Re:

“He didn’t think he would have to obtain the copyrights to the original design.”

…and he was apparently wrong. Why should ignorance of the law be a defence? People have had their homes taken away for things “they didn’t think they had to do”. Why should his ignorance mean that he get to alter other peoples’ houses?

“decided to steal the design anyway”

The original house stands, as do the blueprints and original design. Nobody stole a damn thing.

“FYI, there is not a time limit on when to file a copyright on a design you paid for”

But, if somebody copies it in the meantime, that’s tough. You shouldn’t get to retroactively change the copyright status just because you couldn’t be bothered to get off your fat ass and file the paperwork at the time. If it was not under copyright when the “copy” was made, it was legally copied. Stop with the retroactive crap, it wouldn’t fly in any other way of thinking.

Anonymous Coward says:

What we’re discussing here is the subject of copyright. Technically blueprint designs are copyrighted but this also involves what’s known as ‘architectural copyright’ where the designs of original new features of a new home or building are copyrighted.

In 1990, congress passed the “Architectural Works Copyright Protection Act” which provides copyright protection to original designs of architecture in virtually any form, including architectural plans, drawings and buildings themselves. This means that a builder may be liable for copyright infringement if the building itself infringes another’s plans or building regardless of whether the plans themselves were copied. Therefore, builders, architects and owners should not attempt to mimic other architectural works in any form.

Many other countries have similar laws. It means that you may not copy from blueprint or actual construction design, any feature that is original to the constructed building.

Anonymous Coward says:

Re: Re: Re:

That’s how a lot of infringement happens. George Harrison didn’t sit down with the words and chords to ‘he’s so fine’ when he wrote ‘my sweet lord’.

There’s a scene in the Nick Cave documentary where he’s in the studio writing at the piano, playing some chords, singing of a lyric sheet when all of a sudden he stops and say “Fuck it, that’s a lionel ritchie song”.

Tom Petty said, when he was robbing Sam Smith of his royalties, “this happens all the time but most musicians don’t let it leave the studio door”

Anonymous Coward says:

fact of the matter is that the Bredens lost out on a bid for a unique architectural design for a house. They were upset. So, what did they do? They decided to grab the design for free and asked the contractor to design their home with those features as their neighbor.

They were informed that Coles has the copyright on the design. They should have stopped. They didn’t.

When you’re infringing on someone’s intellectual property rights and you’re informed you’re infringing, you stop doing it. The Bredens were informed. They didn’t stop. So, they’re liable.

Wendy Cockcroft says:

Re: Re: Re: Re:

Imagine that you and your lady have been invited to a party. You get chatting to another couple, the lady of which admires your lady’s couture handmade dress.

A few weeks later you’re invited to a different party and your lady goes wearing the same dress as before. The other couple is also there and what do you know? The other lady is wearing a copy of your lady’s dress!

This is, of course, a social faux pas, but how would you or your lady react? In the same way? There’s no copyright in fashion, Mark. Why, then, should there be copyright in buildings?

Copyright protects nothing, it’s a monopoly. All it does is provide a temporary (the meaning of which is being stretched ever thinner!) right to sue infringers. And damn it, if someone copies the structural design of your house it’s no big deal.

Copying is not and never should be a problem in the mind of a rational person.

Daniel Joseph Calvanese (profile) says:

Copyright Itself Is Wrongly Used Here

The copyrighted work here is being used to exclude others from using the work at all. In doing so, the owners are ignoring the whole point of copyright.

“The primary purpose of copyright law is not so much to protect the interests of the authors/creators, but rather to promote the progress of science and the useful arts—that is—knowledge. To accomplish this purpose, copyright ownership encourages authors/creators in their efforts by granting them a temporary monopoly, or ownership of exclusive rights for a specified length of time. However, this monopoly is somewhat limited when it conflicts with an overriding public interest, such as encouraging new creative and intellectual works, or the necessity for some members of the public to make a single copy of a work for non profit, educational purposes…”

The original owners ought to be entitled to a reasonable fee for using their design, not control over other works.

Daniel Joseph Calvanese (profile) says:

Re: Re: Copyright Itself Is Wrongly Used Here

After a quick search, I found that the primary purpose of copyright law in Australia was…

…to give to the author of a creative work his just reward for the benefit he has bestowed on the community and also to encourage the making of further creative works. On the other hand, as copyright in the nature of a monopoly, the law should ensure, as far as possible, that the rights conferred are not abused and that study, research and education are not unduly hampered.”

Note that this wording may describe ‘creative’ works, but exchange that word for ‘useful’ and tell me if the meaning should change at all. The owner still deserves a reasonable fee for the design and doesn’t deserve control over another’s work.

Anonymous Coward says:

Re: Re: Re: Copyright Itself Is Wrongly Used Here

Lets see eh?

“The writer of this song….The Author of this novel…. “e.t.c

“The maker of this spoon….The constructor of this chair…” e.t.c

Yes, the meaning SHOULD change because creative and useful do not even remotely mean the same thing.

Daniel Joseph Calvanese (profile) says:

Re: Re: Re:2 Copyright Itself Is Wrongly Used Here

…exchange the word ‘creative’ for ‘useful’ in the excerpt to see if the meaning of the excerpt changes:

“…to give to the author of a creative work his just reward for the benefit he has bestowed on the community and also to encourage the making of further useful works. On the other hand, as copyright in the nature of a monopoly, the law should ensure, as far as possible, that the rights conferred are not abused and that study, research and education are not unduly hampered.”

Copyright was not meant be used to prohibit creative or useful works, so the meaning of the excerpt does not change. Copyright was meant to give the original author his just reward, not control over how it is used by others. If the original author will not accept a reasonable fee through his monopoly of sale, then his copyright ought to be infringed upon with impunity because he acts in bad faith.

Scott (profile) says:

"Intellectual property" should be renamed "intellectual theft"

This is just a symptom of what others here have pointed out, that our “intellectual property” laws are out of control. Our entire society, everything that we take for granted on a daily basis, is based on previous ideas and inventions which are based on previous ideas and inventions ad infinitum.

What we’re doing now is making it harder and harder for us to take previous ideas and inventions and improving on them or even mimic them. We’re locking up those precious resources and giving them to wealthy people or corporations who have no interest in the public good but only care about profits or ego.

Yes, I know I'm commenting anonymously says:

Coming up: rent seeking architects

And now we wait for the phase where the architects start rent-seeking (i.e. demanding a percentage when the house changes ownership) instead of designing new houses.

And then the trade in architectural designs picks up, followed by the trolls moving in. And we end up with another version of the patent/movie/music system.

Nomad of Norad says:

Queensland (AUS) Supreme Court

I’m not familiar enough with how the court system in Australia is structured. Is the Queensland Supreme Court a STATE or DISTRICT level of supreme court, analogous to, say the Florida Supreme Court, where there is a still HIGHER supreme court analogous to the Supreme Court of the USA, who can in fact OVERRULE a decision by the Florida Supreme Court? Or is this more like the courts in the EU where, say, the French supreme court or the Spanish supreme court are each the highest in the land and DON’T have a higher court you can go to if they fuck things up?

In other words, is this “‘infringing’ house” decision one we’re stuck with forever, like that confoundedly wrong-headed right-to-be-forgotten ruling against Google, or can it still be taken to a higher court and overturned?

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