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The recent case of Signature Realty Ltd v Fortis Developments Ltd [2016] has provided a reminder of the position in relation to use of plans and drawings produced on behalf of another party.

When purchasing a property with the benefit of planning or any intention to progress a development based upon plans or drawings produced for a Vendor, it is of utmost importance that an assignment of Copyright or an assignable Licence to use plans and drawings is obtained.

To the extent that assignment of Copyright or some form of assignable Licence is procured from the original producer of the plans and drawings, any attempt to carry out a development dealt with by such plans and drawings is likely to infringe copyright.

In the case of Signature Realty Ltd v Fortis Developments Ltd a purchaser exchanged Contracts to purchase a property and then retained architects who successfully applied for planning. However the purchaser was unable to complete and eventually the owner sold the property to a second purchaser who therefore acquired the property and the benefit of the planning permission obtained by the first purchaser. The second purchaser appointed new architects and went ahead with the development.  The first purchaser became aware of this and obtained an assignment of the intellectual property rights/Copyright in the drawings and then brought infringement proceedings against the second purchaser.

The Court had little hesitation in finding that there was a breach of copyright as the building constructed was substantially similar to that in the original plans and drawings that were produced by the first purchaser’s architects. Accordingly the first purchaser was entitled to claim damages or an account of profits from the second purchaser.

There is often an argument that if a property is acquired from a party who themselves had the plans and drawings produced, there may be some form of implied licence.  However, if a purchaser wishes to make any changes or alterations to the original design then that in itself is likely to require permission from the original architect/designer.

As mentioned the real complication arises where the architect or designer was not instructed by the Vendor but by another party as in the case mentioned above.

It is generally considered to be good practice for a purchaser of a development site to obtain in any event an assignment of Copyright or more likely an assignable Licence to make use of the drawings in order to avoid subsequent litigation in relation to the carrying out of the development.

For further information regarding this topic or any other property and construction matter, please contact Head of Property Stephen Brower, or any member of Edwin Coe Property team.

Edwin Coe LLP is a Limited Liability Partnership, registered in England & Wales (No.OC326366). The Firm is authorised and regulated by the Solicitors Regulation Authority. A list of members of the LLP is available for inspection at our registered office address: 2 Stone Buildings, Lincoln’s Inn, London, WC2A 3TH. “Partner” denotes a member of the LLP or an employee or consultant with the equivalent standing.

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