Coles v Dormer & Ors  QSC 224
This case is another decision from Queensland determining copyright infringement of building plans.  The case concerned a unique residential building in Port Douglas, described by Mr Coles, the owner of the house and plaintiff, as “French Provincial with a Caribbean influence”. This extraordinary design roused high passions in the tropical north Queensland sun, which was settled in the Supreme Court of that state, where Henry J delivered a singular set of orders for copyright infringement.
The house had recently been built with plans developed by Mr Skyring and put on the market. The unique style caused the plaintiff to fall for the house and purchase it $1,150,000. However, the plaintiff was not the only party enamoured by the house’s unique design. Another couple, the Bredens who had been beaten by the plaintiff in the sale, decided to replicate the design and pay $1,000,000 to have their own “French Provincial with a Caribbean influence” constructed in Port Douglas. The plaintiff, alerted to the fact that the uniqueness of his home would be diluted by a replica built three houses away, obtained an assignment of copyright in the building plans of his home. The plaintiff warned the builders and designers of the Bredens’ house that he owned copyright in the plans of his house and that he wanted to ensure a copy of his house would not be built. The plaintiff repeatedly requested copies of the Bredens’ plans for his approval. This request was ignored, construction began and the plaintiff brought an action for copyright infringement in the Supreme Court.
The plaintiff alleged the defendants infringed copyright by reproducing or substantially reproducing those plans and constructing a house substantially based on those plans. The defendants denied infringing copyright and alleged that the assignment from Mr Skyring to the plaintiff was ineffective.
The court set out five issues for determination:
- Originality in Mr Skyring’s work
- Effectiveness of the assignment
- Infringement of copyright in the plans
- Construction of the house as infringement, and
The defendants submitted that there was no copyright subsisting in the plans because the plans were not an original artistic work, or alternatively that the plans were a work of joint authorship owned by Mr Skyring and his initial clients, the Spicers.
The court dismissed these arguments and found that Mr Skyring had expended “significant effort”, “professional expertise or ‘independent intellectual effort’’’ in translating his client’s instructions into the plans.  The court found the plans were an original artistic work and copyright subsisted. With regard to whether the work was a work of joint authorship, the court found the Spicer’s contributions, in the form of emails containing instructions to Mr Skyring was in the nature of occasional suggestions and feedback as a client. This contribution fell short of the requirement in the Copyright Act that a work of joint authorship involves collaborations from multiple authors in which the contributions are “not separate”. 
The defendants argued that the assignment from Mr Skyring to the plaintiff was ineffective because the building plans were a work of joint authorship. Having found that the plans were solely the work of Mr Skyring, the court dismissed this argument and found the assignment was effective. Alternatively, the defendants argued that if any infringements had occurred, they occurred before the assignment. This was dismissed by the court based on the evidence provided. 
Expert witnesses for both sides gave evidence that the Breden house plans are a “substantial copy” of the Skyring house plans. The court found it is “obvious copying on a substantial scale must have occurred” and the similarities so persuasive as “compel the conclusion that the Breden house plans are a reproduction of a substantial part of the Skyring house plans” and therefore an infringement.  After finding infringement in the plans, the court also found an infringement in the Breden house based on the construction from the plans.
A key issue in the case was the nature and scope of the remedies available. The plaintiff had sought an injunction to stop construction of the infringing house, which was at “final fix” stage by the time the court had arrived at its decision. The court noted the “real vice” in the infringement was the very thing the plaintiff had taken lawful steps to prevent. In considering whether an injunction would be oppressive to the defendants in the circumstances, the court noted the defendants knew that an intervention by a court was a risk they assumed in acting as they did. The court found that an order for an injunction would be appropriate in the circumstances. 
The plaintiff was particularly aggrieved by the diminution of the uniqueness of his house. He explained he notices this every time he walks out of his house, the façade of the Breden house substantially resembling his own. The court then made orders to remove this resemblance, removal of the round windows replacing them with rectangle or square windows and window frames, removal of the dormer roofs and removal of the stone edge trim corners at the front of the house. On 28 August, the court will hear any appropriate variations or additions to this order, together with the plaintiff’s election as to damages or account of profits and directions to advance a determination on damages and costs.
It is perhaps emblematic of this country’s obsession with home ownership that there are so many copyright disputes relating to infringement of building plans. However, most of these building plans cases involve developers and project homes, not individuals. This case is singular because it features a plaintiff so captivated with the uniqueness of his home and so irritated that someone had copied it, that he took action in the Supreme Court to seek redress. The singular nature of the dispute informed the singular nature of the orders. This could be the only opportunity one has to see a court order the removal of a dormer roof in a copyright infringement claim.
 Following Tamawood Limited v Habitare Developments Pty Ltd (Administrators Appointed) (Receivers and Managers Appointed)  FCAFC 65 earlier this year. See our note on that case at http://www.copyright.org.au/acc_prod/ACC/News_items/2015/Another_copy_case_in_building_plans.aspx
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