Who owns the copyright to your plans? Know where you stand
If a person commissions an architect or a builder to draw architectural plans for them in accordance with their own “mud map” designs, and even if there is not much additional design input into the drawing of the architectural plans, the architect or the builder will own those plans.
However, if the person pays the invoiced fees to the architect, draftsman or builder for drawing those plans for them, that person has an implied licence to use the plans for the purpose for which they were commissioned to be drawn. In other words, they are able to copy and reproduce those plans by constructing a three dimensional home in accordance with those two dimensional plans on the building site for which they were drawn.
This is because under the Copyright Act, the person who creates novel “artistic” work which includes the drawing of architectural plans for domestic dwellings, is the owner of the “work”. This means that as the owner of these plans, only the architect, draftsman or builder who drew the plans may license those plans to be copied and reproduced to construct a home from those plans.
People unfamiliar with these rules have unfortunately been the subject of considerable expense on the construction of their home in accordance with plans drawn for them. A not uncommon occurrence is where owners approach one project home builder, have plans drawn for them to their specifications, receive a costing for the construction of the home in accordance with those plans and then shop around until they find another builder to construct the home for a cheaper price. If the owner then appoints that other builder to build the home in accordance with those plans, or to plans that are substantially similar to the first lot of plans, the owners are infringing copyright ownership of the architect or builder in those plans. The result is that the owners may end up having to pay the total construction price to the new builder and a licence fee to the architect or builder who drew the plans and potentially the legal costs associated with the infringement.
To add another layer of loss suffered by the owners, the new project home builder will usually have in the standard Domestic Building Contract a warranty by the owners that they own the copyright in the plans brought to the builder plus an indemnity granted by the owners to the builder to cover any costs associated with the infringement of copyright in the plans. The owners may also end up having to pay the legal costs of the builder if he is targeted in any infringement action. It can be a very expensive exercise and your “dream home” can suddenly become a nightmare merely because of a well-intentioned yet misplaced desire to save construction costs.
Therefore, if you do have plans drawn for you by an architect, project home builder or a builder and you wish to appoint another builder to use those plans to build your home, obtain an assignment of copyright in the plans before you take the next step. Alternatively, look at the fine print on the preliminary contract you enter into with the architect or builder upon commissioning the plans to be drawn. Look for provisions relating to ownership of the plans and settle the question of ownership before you proceed.
Dan Pearce, Partner
T: +61 3 9321 9840
Lyn Nicholson, General Counsel
T: +61 2 8083 0463
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.
Published by Lyn Nicholson