So You Admire Your Neighbour’s House? Best Not to Copy the Design

Steve Russell/Toronto Star

If you have always admired or even envied your neighbour’s house—those special features like the gabling, the placement and colour of the windows and window frames, the design of the chimney, and so on–and are tempted to hire an architect to copy it, perhaps you should think again. That’s the lesson that has emerged from what we could call the “Strathearn design case” in Toronto. (named after the street on which the home with the copyrighted design was located).

According to an article in the Toronto Star, which reported (or perhaps misreported) the case, a couple (Jason and Jodi Chapnick) who were renovating their circa 1930s home contracted with a noted architect, Gordon Ridgely, (who passed away in 2013), to design their renovation. According to the Chapnicks, in order to protect the design of their home, and Ridgely’s legacy, the copyright on the original design of the home and on Ridgely’s modifications was assigned to them. Imagine then their dismay when they learned that a newly renovated home nearby bore a striking resemblance to their own home. It explained why tradesmen from the second home had been appearing on their property to take photos of their own ongoing renovation. The second home was being renovated for resale by a person who undertook such projects, assisted by her construction-company-owning husband and architect brother-in-law. The Chapnick’s through their lawyer issued a demand to cease infringing, the defendants refused, and the case ended up in court.

The defendants claim they were inspired by Tudor-style cottages and baronial castles in Scotland but not the Chapnick’s house. As you can see from the photos, there are some strong similarities between the outside design of both homes. That in itself is not unusual. Look at the cookie-cutter homes that spring up the suburbs of any major city. The big difference though is that these suburban designs are usually by the same architect, if the housing is constructed by a common builder, or else they are so generic as to be indistinguishable one from another.

It is uncommon for a house design dispute to end up in court. You have to have an aggrieved party that is so offended or annoyed by what it perceives to be a copycat of an original design (in other words a copyright infringement) that they are prepared to resort to litigation. Normally this is done by one architectural firm concerned that its work and designs are being unfairly copied by a competing firm. It is rare for a homeowner to own the copyright. It is also unusual for the infringement to be done by someone living relatively close by (less than a kilometer away) so that the infringement (if it is such) is seen to be flaunted on a daily basis. All this led to a “perfect storm” for a legal confrontation.

In the case of the Strathearn home, we don’t know whether the design of the second house constituted copyright infringement because the case was settled out of court. However, according to news reports, the defendants agreed that the Chapnick’s own the copyright on the design of their home and accepted a permanent injunction preventing breach of the copyright. It would seem that the original demand for financial damages and a change in design of the second house was not part of the settlement but that is speculation as the terms were confidential. “Cutting a deal” obviously suited both parties. The defendants did not admit guilt or liability and the plaintiffs received assurance that there would not be copycat versions of their home popping up all over Toronto. An important principle was also reinforced, namely that architectural designs are protected by copyright.

While it is not directly related to the Strathearn case, another recent case involving architectural designs is relevant in this context. In September of 2017, the Federal Court of Canada awarded $700,000 in damages to Lainco, Inc., a company specializing in the design and construction of indoor steel structures, such as those housing indoor soccer fields or tennis courts. Lainco claimed that its design, achieved through a process of rigorous testing and trial and error, had been infringed by the defendants, the Commission Scolaire Des Bois-Francs et al (Bois-Franc School Board plus an engineering firm, architectural firm and building contractor). The defence was that the design was utilitarian and not “original”. It was not disputed that the defendants had access to Lainco’s original structure and had taken photographs of it prior to proceeding with building their own structure. While trusses and beams are part and parcel of all buildings of this type, a unique or original combination of the trusses and beams incorporated into a design can clearly be given copyright protection. This case, and the role of the court in Canada in recognizing the protection afforded to architectural design by copyright law (apparently the first such judgment in fifty years), is covered in more detail here and here.

So how does this translate into your envy of your neighbour’s house (or maybe garden) design? Well, my advice would be to think twice if the design that you want to copy is something really original that your neighbour has designed, or has paid a professional to design. It may be a common proverb that “imitation is the sincerest form of flattery”, but this doesn’t hold much water in the world of copyright.

© Hugh Stephens, 2018. All Rights Reserved.

 

 

Copyright Developments Down Under: There’s a Lot Going On

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The wheels of copyright change are grinding away in Australia, both through legislative review and court actions. I hesitate to call the process “copyright reform” because one person’s reform is another’s regressive step. The government has chosen the term “copyright modernisation” and a public consultation has been launched with a final submission date of July 4. The review is designed, in part, to gauge public support for copyright proposals included in a report on intellectual property issued by the Productivity Commission back in 2015 and 2016. Continue reading “Copyright Developments Down Under: There’s a Lot Going On”

Google “Thumbs its Nose” at New Zealand’s Courts: Kiwis Should Look to Canada for a Precedent

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Google is at it again. According to press reports in the New Zealand Herald, Google refused to comply with a New Zealand court order to suppress details and remove content related to a local murder trial because, according to a representative of Google NZ, “Google LLC, was a separate legal entity incorporated in the US, meaning New Zealand’s courts and laws held no power over it.” Tell that to the Supreme Court of Canada. Continue reading “Google “Thumbs its Nose” at New Zealand’s Courts: Kiwis Should Look to Canada for a Precedent”

Why Can’t I Legally Pick ‘Digital Locks’ to exercise my Fair Dealing Rights?

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This wasn’t quite the way the question was stated, but in effect this was what was being asked by a student who wanted to know why it wasn’t ok to access (i.e. hack into) encrypted digital content when her purpose was to make a copy for legally-permitted private use and study. After all, the logic goes, the Copyright Act (in Canada) permits certain fair dealing uses, such as private study, research, criticism, review, education, parody, satire, or news reporting, whereby limited copying is legal even if the work is protected by copyright. If the intended user can’t access the material because it is protected by a TPM (technological protection measure), commonly referred to as a “digital lock”, how can she/he exercise these fair dealing rights? Continue reading “Why Can’t I Legally Pick ‘Digital Locks’ to exercise my Fair Dealing Rights?”

FairPlay Canada Answers its Critics and Restates its Case

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Last week the FairPlay Canada Coalition, now up to 30 members and covering the full range of the content industry value chain, filed its response to the Canadian Radio-television and Telecommunications Commission (CRTC) pursuant to its earlier application in January “to disable online access to piracy sites” (commonly referred to as “site blocking”). For more information on the application, the Coalition and its objectives, see my earlier blog “Hang Together or Hang Separately” here. The “Reply” is a long document (60 plus pages) with six Appendices, but it is a thorough, reasoned, and well-documented rebuttal of the criticisms made by opponents, many of which were generated by misleading online campaigns mounted by anti-copyright advocacy groups like Open Media. Continue reading “FairPlay Canada Answers its Critics and Restates its Case”

The NAFTA Negotiations — and Canada’s “Priority Watch List” Designation: It’s All About The Leverage

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If you are a trade negotiator, a key objective is to get maximum leverage (aka negotiating “coinage”) in order to extract concessions from the other side or as a trade-off against concessions that you don’t want to make. The NAFTA negotiations are no different, even though at one moment they seem to be close to completion, and the next to be going backwards as new demands are piled on, or seemingly settled issues resurface. Continue reading “The NAFTA Negotiations — and Canada’s “Priority Watch List” Designation: It’s All About The Leverage”

Is the Era of “Permissionless Innovation” and Avoidance of Regulation on the Internet Finally Over? It’s High Time.

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It would be the ultimate under-statement to say that recent events concerning the appalling breaches of privacy permitted and indeed orchestrated by Facebook have raised public awareness to new heights over what happens when internet intermediaries are allowed to do just about whatever they want. Despite Mark Zuckerberg’s apologies about “mistakes” and pledges do better in future, the genie is out of the bottle. Even Zuckerberg had to admit that there is a place for regulation. Continue reading “Is the Era of “Permissionless Innovation” and Avoidance of Regulation on the Internet Finally Over? It’s High Time.”