What Is Worth Copy Is Worth Protecting

MKTG350

ASSIGNMENT 1 – CASE STUDY

Petersen J – “what is worth copying is prima facie worth protecting”

Student Name: Ashleigh Kingston

Student Number: 42133025

Material Facts:

• Mr & Mrs Trump employed architect ‘Bob Smith Architects’ to design and create plans for their unique & luxury house. Both parties communicated verbally to co-design numerous sketches.
• Bob Smith created a house design described as ‘Moroccan-Mexican’ influence. The ‘Smith - Trump House’ was distinguishable and unique in style. In doing so he intended to make sure the ‘Smith-Trump house’ would be the only house of its design in the area.
• The Trumps put the house up for auction and two parties inspected the property and both were interested in the ‘Smith-Trump House’. Mr Vic Lim purchased the ‘Smith-Trump House’ for $1,500,000. Fred and Mabel Wolf were not successful in the purchase of the ‘Smith-Trump House’ so they paid $1,000,000 to Sunshine Coast Builders (SCB) to build their house.
• The Wolf’s used plans drafted by building architect Bob Smith (Smith-Trump House). Mr Lim (plaintiff) was made aware the Wolf’s were using the ‘Smith-Trump House’ plans. Mr Lim took action and put ‘SCB’ on notice of copyright ownership, and made clear his objection for recreating a house identical to his. Mr Lim also met with SCB multiple times to express his objection. Mr Lim organised with Bob Smith, to have the building plans legally assigned to him (in writing). Mr & Mrs Wolf avoided any contact with Mr Lim, despite knowing he was not happy about the construction.
• Minus a few alterations to the exterior features such as window shape, trimmings and paint, The Wolf’s house created by ‘SCB’ was the same as the ‘Smith-Trump House’. These changes were not enough to not be seen as reproducing the ‘Smith-Trump House’ plans and design.

Discuss the scenario and outline the possibilities associated with the case

There are three key issues at the centre of this case:

1. Was the reproduction a substantial part of an artistic work; such as the floor plan for the house?
2. If the Wolf’s/SCB are found to be in breach of the Copyright Act 1986 and moral rights under the Copyright Amendment (Moral Rights) Act 2000, what remedies should be awarded if breach of copyright is established?
3. Did the architect Bob Smith legally assign the ownership of the design to Mr Vic Lim (plaintiff) before; during or after the Wolf’s started their building process and during such time did the respective owner take appropriate action once they were made aware of the impending infringement?

What are the legal issues in this scenario and what action would be available to Mr Vic Lim?

Copyright protection takes place from the moment the architectural work is given ‘material form’ such as a sketch, blueprints, plans, architectural drawings, renderings or models of the building or the building themselves.^[1] As seen in case Eagle Homes Pty Ltd v Austec Homes Pty Ltd (199) 87 FCR 415^[2];  ‘Lindgren J saw the infringed plan ‘embedded’ in the infringing plan, which had adopted the “essential features and substance”. Turning to a comparison between the plans, the majority found the plan disclosed sufficient objective similarity and the plans can be seen “embedded”. The respondents had reproduced a substantial part of the plan without the licence of Tamawood and had infringed copyright’ ^[3]. The Wolf’s were not given a licence from Mr Lim to reproduce the house plans, as stated in the Eagle Homes case and the material facts of the Lim case, the Wolf’s have infringed copyright.

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