Query regarding the plans - who owns the plan and design

chokyulate · Jan 17, 2021 1:52 pm

Hello fellow members

I have been looking to this wonderful forum for some time now and I found it very usefully, knowledgeable. I am seeking help from fellow members to to guide me here. I am looking to build my house in NSW south west region. I approached couple of project builders and got the tender, then down the line I decided to opt for custom builders for more flexibility
I approached one small builder, initially they offered to provide me everything I asked for including landscaping, timber doors and all extra inclusions which I didn’t asked for. I sent the list of my inclusions, my plans / layout of the plan which I kind of finalized with project builder. The facade was not finalize so custom builder offered me make my dream home. The price was finalized, I paid the deposit and our journey started. We were sent to architect to finalize the facade, the architect said ur plan is already final we just need to work on facade. Going to back to forth we finalized the plan to every detail including windows size / door size etc. during these time builders keep on changing the price, he advised the house size is increased ( with no change in actual layout or room size ) we agreed to pay another 10k. Then builders backed on landscaping and confirmed it will very expensive, then he backed out on fencing. I asked him to send me written document what he will be providing us as all the time he has been just making false promising. In Final document we realize he didn’t included any of the inclusion we asked for and he advised he cannot provide everything ( that was his words ) anyways thing didn’t worked out we decided to cancel and didn’t wanted to proceed
We ask for our money back because of his false promises. He returned the money back. We approach another builder with the same plan and same inclusion however now he has been advising everyone that I cannot use his plan because that plan belongs to him and if I want to make the house with this plan we must pay him money, which we believe it’s unethical and unprofessional. The whole plan and the layout was our idea he’s architect never used his brains to drop the plan he only worked on the façade. Please advise us based on your experience if we should approach fair trading or we can just use the plan
Thanks for your help

aussieta · Jan 17, 2021 3:44 pm

that is correct plan belongs to first builder

arcadelt · Jan 17, 2021 7:05 pm

aussieta

that is correct plan belongs to first builder

That seems like a very cut and dried answer. Surely if the client provided significant input, then at least a proportion of the intellectual property would belong to them? I doubt, however, that anyone would go to the expense of testing that in a court of law unless the plans were very unique.

aussieta · Jan 17, 2021 7:22 pm

in court of law plans belong to the builder who drew them
even if they only changed a couple of lines from a plan you supplied

SaveH2O · Jan 17, 2021 7:43 pm

@ chokyulate, this subjuct has come up a number of times on this forum. Have you done a forum search using the keyword "copyright"?

BTW, aussieta is correct.

chokyulate · Jan 18, 2021 7:39 pm

Thanks guys .. So what are my option ? I can’t go another builder and make same plan .. coz I really don’t want to change the layout

SaveH2O · Jan 18, 2021 8:10 pm

Another builder who you have discussions with would have to buy the plans.

StructuralBIMGuy · Jan 18, 2021 9:18 pm

chokyulate

Thanks guys .. So what are my option ? I can’t go another builder and make same plan .. coz I really don’t want to change the layout

It is a civil matter, nothing to do with fair trading
Well you can offer the copyright builder/designer say 3% of the contract price Av. $10k to release copyright for use.
If he says no. then you can take a chance on building it with another builder, but be warned, during the course of construction you will receive a letter from the Builders lawyers claiming the $10k Plus costs.... most owners settle out of court.
OT, Even if you remove the builders name from the plans and claim ownership, the new builder will get you to sign a form indemnifying him from breach of copyright...you will be accepting all responsibilities in a civil court.. steer clear it becomes a lawyers feast
Cheers
Chris

arcadelt · Jan 19, 2021 7:53 am

chokyulate

Thanks guys .. So what are my option ? I can’t go another builder and make same plan .. coz I really don’t want to change the layout

Sadly, it seems you a caught in a legal bind, which I had no idea about until you posted this thread. This webpage was worth reading:

https://www.buildsafe.com.au/who-owns-the-copyright-to-your-plans-know-where-you-stand/

SaveH2O · Jan 19, 2021 11:46 am

arcadelt

Sadly, it seems you a caught in a legal bind, which I had no idea about until you posted this thread. This webpage was worth reading:

Stewie D, a long time highly valued forum member with many years of building design experience, has posted a lot of information about copyright in numerous threads. If you go to his profile, click on "posts" and then enter "copyright" in the search bar, numerous posts in many threads will be quickly referenced.

chokyulate · Jan 19, 2021 8:27 pm

Thanks guys much appreciated
Believe only option to start the plan process again with new builder and tell them my requirements
May be they will come up with something similar

SaveH2O · Jan 19, 2021 9:33 pm

.....or have your own plans drawn up but so they don't infringe on the first plan's copyright but usually the first builder would be receptive to selling the plans because they would be of no use to him.

I am amazed that you got all of your money back but the builder is obviously out of pocket. Just ask how much they would want for the plans or for another builder to use the plans to build your house but don't think that you have to accept their first highball.

BuildingandLegal · Jan 29, 2021 3:02 am

The plan is owned by the builder even though you provided input into its design, intellectuals property rights rest with the drawer.
The issue you now have is the old builder has your lot address to intend to build on, the false view that if you change the room size and a couple of minor tweaks it'll be fine is wrong. If old builder can lay his design over your new tweaked design and it's pretty similar, then you are in breach of copyright and the builder can actually sue you for the profit he would have made if he had built it.
I would suggest give the new builder a VERY basic line drawing of what you are trying to achieve and let them develop it up, if you can show an evolution of design Plan A, version B, version c etc then similar is now out the window, the real stupid thing about house plans and facades. A facade you can straight-out copy as there is no IP/copyright

chokyulate · Jan 31, 2021 7:59 pm

Thanks guys much appreciated.
I have engaged a new builder with new architect.. gave them idea what I want to achieve. I did look at other plans most of the layouts I like Is similar and few builders have similar plan. Architect have advised he will work from scratch will work on design. The only thing I don’t want to compromise is layout of dining / kitchen / living .. architect advised it’s kind of generic so it won’t be copyright however he will try to change and work on other parts of the house so the old builder cannot claim it’s his design

Again I have no expertise, so not sure what needs to be change. I do find it very disappointing specially when you work on your dream house and layout and for some reason things doesn’t work out with first builder we have to change the whole plan and need to work on it from scratch therefore wasting all the efforts worth 2 months

ECOECO · Feb 19, 2021 3:27 pm

While it's true that the drawings belong to the builder it doesn't necessarily include copyright. Do you have prior art where you sketched or drew what you wanted and perhaps gave the builder a copy? And do you have drawings along the way that you marked up? These would identify the extent of copyright. If you had plans drawn from your sketches the builder will struggle to claim copyright and he will also be unable to build the house for anyone else.

Incidentally if you commission someone to design a house (or write a piece of code etc.) the copyright will rest with the subcontractor UNLESS you have a written agreement to the contrary. But in this case, I assume you gave your instructions to the builder in the form of drawings or sketches, and he simply turned these into CAD with bills of materials, he can't claim copyright on a bill of materials.