Copyright in Project Homes: The Battle Continues and the Benefits of “Independent Creation”

Inform Design and Construction Pty Ltd v Boutique Homes Melbourne Pty Ltd [2008] FCA 912
http://www.austlii.edu.au/au/cases/cth/federal_ct/2008/912.html

In the past 12 months, the Federal Court has heard a raft of copyright cases involving project homes. Justice Weinberg recently handed down a decision in favour of an alleged infringer of copyright. Despite considerations of functionality and common use, the case largely turned on evidence. His Honour stated at [122]:

“Despite the significant body of evidence led in this case, and the copious citation of authority, the real dispute between the parties turns largely upon a simple question of fact. Has Inform established by reliance upon inference that those involved in the design and construction of the Villa View copied central elements of the Urban or Seasons?”

His Honour’s held in favour of the respondent on the basis that there was independent creation of the house plans. Credible evidence supported this view which contrasted sharply with the findings in Barrett Property Group Pty Ltd v Carlisle Homes Pty Ltd [2008] FCA 375: http://www.austlii.edu.au/au/cases/cth/federal_ct/2008/375.html and similar cases.

At [136], Justice Weinberg concluded:

“I am not persuaded that anyone associated with Boutique copied any Inform design. I accept the evidence of Mr Di Natale, Mr de Weerd and, in particular, that of Mr Lazarovski to the contrary. I was impressed by Mr Lazarovski’s account of how the Contemporary Villa Grand came to be designed over several months and with hundreds of changes based on trial and error. That is hardly consistent with a case of copying, whether conscious or subconscious. I do not attribute to Mr Di Natale a sophisticated form of plagiarism whereby he pretended to be working towards a solution that he knew had already been achieved by Inform. I am unable in the face of this evidence to draw the inference for which Inform contends. Whatever similarities there are between the Seasons and the Villa View are fully and rationally explained. I am therefore not persuaded that the Villa View was not the product of independent creation.”