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Australian Court Orders Homeowners To Physically Alter Exterior Of ‘Infringing’ House

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Australian Court Orders Homeowners To Physically Alter Exterior Of ‘Infringing’ HouseCopyright infringement lawsuit alleges two builders worked with married couple to construct a “copycat house”
by Tim Cushing | Tech Dirt | September 16, 2015 


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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