It all began when a company called Assured Developments asked Jones to design a housing development. All went well until Assured had a quarrel with Tower Hamlets. By that time, only the shell of one terrace was complete. Arbitration was begun to sort out the row, but Assured couldn't fund it. It left the row and the site. Meanwhile, the architect was owed £220 000. He didn't get it because Assured went broke. He wrote to Tower Hamlets reminding them that he had copyright in the drawings and if they chose to pay his fees, all would be well. He couldn't demand payment because his contract was with the bust company, not Tower Hamlets. Nothing was paid.
Now comes the copyright row. How far can anyone go in using someone else's bright ideas? If you build houses, can you happily lift someone else's design or design features into your building? Jones said Tower Hamlets had copied his ideas, lock, stock and barrel. Tower Hamlets denied it. It accepts entirely that all the drawings done by the architect contain copyright and that the owner of those copyrights is the architect. But the law in this area is not all that easy to follow.
You cannot copy the architect's artistic work, such as a drawing or plan, but he is not protected from others following ideas or concepts embodied in the plan. Copyright subsists not in ideas but in the form in which they are expressed. So, it is not an infringement of the copyright in the expression of an idea to take the idea and apply it, so long as that application does not involve copying the expression.
You cannot copy an architect’s artistic work, but he is not protected from others following ideas embodied in the work
Oh dear, oh dear, that is as clear as mud, isn't it? Let's try to put it another way. Many Victorian buildings copy details of classical buildings of Greece and Rome. Everyone is free to copy them; no one is allowed to monopolise the common stock of architectural ideas. The difficulty is to identify the dividing line between the unprotected architectural idea and the expression of that idea in the form of a drawing or building which is capable of protection. Copyright will not protect the field of architecture from constantly evolving and developing. I can apply a new architectural idea and concept in my building and you are free to follow it as a concept. You cannot reproduce a substantial part of the original house where such reproduction comes about as a result of copying of the physical object itself. But the law does not restrict the application of architectural concepts and styles. Original concepts and styles may, without risk of infringement, be applied and developed by other architects in subsequent buildings. The law does not prevent one architect from following in the footsteps of another. It does prevent him or her from copying the plans of another so as to enable him to follow those footsteps, and it does prevent him from physically reproducing those footsteps, and thereby following them.
Put another way, an architect may legitimately inspect an original plan or house and then, having observed the architectural concept and appreciated the style represented therein, return to his own drawing board and apply that concept and style to an original plan prepared by him.
And with that, Jones began the trial against Tower Hamlets. He lost handsomely. He argued that the site layout was copied; it wasn't. He said the step pattern of the blocks was copied; it wasn't. He said the location of parking bays, the location of footpaths, the orientation of courtyards were copies; they were not. He said the roof design, roof windows, casement windows were copied; no.
Tony Bingham is a barrister and arbitrator specialising in construction. You can write t him at 3 Paper Buildings, Temple, London, EC4 7EY, or e-mail him on firstname.lastname@example.org