Are you being asked to amend someone else’s building plans?

Building designers are regularly approached by clients who already have ideas, sketches, floor plans, approval drawings or concepts.

The client may say that they created the concept, paid for the plans, found them online, received them as part of a building quote, or only want to make a few changes. However, before using those plans or ideas as the basis for your own work, it is important to establish who owns the copyright and whether the client has permission to use and modify them.

Simply redrawing the plans, changing dimensions or moving several rooms may not be enough to avoid copyright infringement.

Copyright can apply to plans and completed buildings

Under the Copyright Act 1968, drawings and buildings can be protected as artistic works, regardless of whether they would ordinarily be considered artistic. Copyright may therefore apply to concept drawings, floor plans, elevations, detailed construction drawings and the building constructed from those plans.

Copyright infringement can occur where someone reproduces, or authorises the reproduction of, a protected work without permission from the copyright owner. This may include preparing revised plans or constructing a building that reproduces a substantial part of an earlier design.

Paying for plans does not necessarily mean that the client owns the copyright or is entitled to provide the plans to another designer. The relevant engagement agreement, licence, assignment and circumstances in which the plans were prepared will need to be considered.

A common risk scenario

A client approaches a building designer with plans previously prepared by another builder or designer.

They ask the new designer to:

• convert the plans into their preferred drafting software
• amend the dimensions to suit another property
• change the façade or roof design
• relocate several rooms
• prepare documentation for building approval
• remove the previous designer’s title block
• provide the plans to a different builder.

The client may genuinely believe that these changes make the design new. However, there is no fixed rule that changing a certain percentage of a design avoids copyright infringement.

The question is more likely to involve whether a substantial part of the earlier work has been reproduced, including its important design features, layout, relationships between spaces and overall arrangement.

What have Australian courts said?

Look Design and Development v Edge Developments

In Look Design and Development Pty Ltd v Edge Developments Pty Ltd & Flaton [2022] QDC 116, homeowners worked with a project builder to modify one of its standard house designs.

The homeowners later provided the resulting plan to another builder, which made further changes and constructed the home.

The Queensland District Court found that copyright existed in the earlier plans, even though they were relatively basic and had been adapted from a standard design using computer drafting software. The preparation of the plans had still required time, skill and effort.

The homeowners were found to have authorised the reproduction of the plans, including through the preparation of the later plans and construction of the house. The second builder had settled the proceeding earlier for $30,000. Although only nominal damages were ultimately awarded against the homeowners because the original builder could not establish an additional loss, the proceeding had been running for several years and would have involved substantial legal costs and disruption.

The decision is a direct warning against accepting a client’s assurance that another builder’s plan can simply be modified and used elsewhere.

Tamawood v Habitare Developments

In Tamawood Limited v Habitare Developments Pty Ltd [2015] FCAFC 65, a developer had originally engaged Tamawood to prepare project home designs. Following a breakdown in the relationship, another architectural practice was engaged to prepare plans for the development.

The later design contained visible differences, including the relocation of bedrooms and living areas. The trial judge considered the dwellings significantly different.

However, the Full Federal Court found that the essential features and substance of one of Tamawood’s designs could still be seen within the later plan. Moving rooms and making other changes did not prevent the later plan from reproducing a substantial part of the original design.

This decision demonstrates why cosmetic changes, room swaps or dimensional amendments should not automatically be treated as creating an independent design.

Coles v Dormer

In Coles v Dormer & Ors [2015] QSC 224, a couple unsuccessfully attempted to purchase a distinctive home and later engaged a designer and builder to construct a similar home nearby.

The Queensland Supreme Court found that the later building plans and house substantially reproduced the earlier design. The court made orders requiring changes to visible parts of the completed home, including windows, stonework and roof features.

In a later damages decision, the court also awarded additional damages because of the defendants’ conduct and the nature of the infringement.

This case shows that the consequences can extend beyond financial compensation. A completed building may potentially need to be physically altered.

What should a building designer do?

Before accepting plans, drawings or substantial design material from a client, consider establishing a consistent checking process.

Ask where the plans came from

Ask the client:

• Who originally prepared the plans?
• Was the original designer or builder paid?
• What was the original purpose of the plans?
• Were the plans prepared for a particular property, project or builder?
• Has the client received written permission to use or amend them?
• Is there an agreement transferring copyright or granting an appropriate licence?

A client saying that they “own the plans” should not be treated as conclusive evidence.

Obtain written confirmation

Your engagement documentation could require the client to confirm that:

• they own the material supplied, or have permission to use it
• they are authorised to ask you to reproduce or amend it
• the material does not infringe another person’s intellectual property rights
• they will provide evidence of their rights when requested.

A contractual warranty or indemnity may assist, but it does not necessarily prevent the original copyright owner from bringing a claim against the building designer.

Request supporting documents

Where another designer’s or builder’s plans are involved, request a copy of the relevant written licence, copyright assignment or permission.

Check whether the permission allows the client to:

• provide the plans to another designer
• amend the plans
• use the plans with another builder
• use the design on a different site
• construct one or more buildings from the plans.

Permission to use plans for one purpose may not extend to every other use.

Document your independent design process

Keep records showing:

• the client’s original instructions
• the source of reference materials
• your own sketches and design development
• alternatives considered
• the reasons behind the final layout
• any copyright discussions or confirmations received from the client.

This can help demonstrate how the final design was developed if similarities are later questioned.

Stop if there are warning signs

Warning signs may include:

• another designer’s title block being removed
• the client asking for an identical redraw
• the client refusing to identify where the plans came from
• plans downloaded from a project builder’s website
• the client saying they were told to change the design by a particular percentage
• a request to make only minor changes before using another builder
• visible copyright notices or restrictions on the plans.

Where concerns remain, work should be paused until the client obtains appropriate legal advice or written permission from the copyright owner.

What about professional indemnity insurance?

A copyright allegation can result in legal expenses, delays, loss of fees, rectification demands and claims against several parties involved in the project.

In many situations, professional indemnity insurers will only respond to copyright infringement claims where the infringement was not deliberate or knowingly committed.  Importantly, this is determined by the facts established in the claim, not simply by whether you believed you were acting appropriately.  Building designers and other professionals are generally expected to meet a high professional standard and may need to demonstrate that they took reasonable steps to avoid infringing another person’s copyright.

There will be differences between policies so it’s important to check your cover and seek appropriate advice.

Building designers should notify their insurance broker or insurer promptly if they receive a copyright complaint, demand, threat of legal action or other indication that there may be infringement on another party’s design.

The main takeaway

Do not assume that a client is entitled to use a plan simply because they possess it or paid someone to prepare it.

Before using another designer’s or builder’s work as the starting point for a project, establish where it came from, obtain written confirmation of the client’s rights and request supporting permission where appropriate.

Changing someone else’s plans does not necessarily make them your own.

This article provides general information only and does not constitute legal or insurance advice. Copyright ownership and permitted use will depend on the relevant contracts, licences and circumstances. Appropriate legal advice should be obtained where there is uncertainty.