Copyright infringement by a developer

Developers (in fact, all construction clients) should carefully review and consider ownership and/or licensing of copyright when using design material.  This particular case concerned design material that formed part of the planning permission for a particular site. 

In Signature Realty Ltd v Fortis Developments Ltd, the High Court held that the Developer, Fortis, was liable for infringing the copyright of drawings prepared by an architect Corstorphine & Wright (“C&W”) under the Copyright Designs and Patents Act 1988 (“the Act”).

With the intention of buying a site owned by Branchester International Limited, Signature applied for planning consent in relation to the development of that site. The drawings which Signature engaged C&W to prepare formed part of a planning application submitted to the local council and the subsequent planning permission issued required compliance with these drawings. The drawings were made available to the public on the Councils’ planning portal for the limited purpose of consultation, comparison with earlier schemes, and to enable others to determine the development complied with the approved plans. Signature never owned the site.

The terms of C&W’s engagement with Signature provided that C&W had ownership of copyright in its drawings and Signature had a non-exclusive licence to use them for the project. Later, the ownership of the copyright was assigned to Signature by C&W although C&W still had a financial interest in the claims of infringement.

Without Signature’s knowledge, Fortis bought the site from Branchester. Fortis downloaded copies of the planning drawings and used them for costing, architectural and marketing purposes, but since Fortis did not buy the site from Signature (who commissioned the drawings and who was entitled to use and copy them), the licence to use the drawings was not transferred as would be the case if Signature was the vendor.

The take away from this case is, as ever, to obtain an express licence to use copyrighted material (designs).  

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