The complications when infringing copyright in an architect’s drawings

Who on a construction project can use the architect’s drawings, without falling foul of copyright law? This piece explores a recent case where the purchaser of a development site was found to infringe copyright in an architect’s drawings which had been produced for planning purposes for the site.

For obvious reasons, architect’s drawings are crucial to a construction project. At the outset of the project, they will form part of the planning application. If planning is subsequently granted, it will usually stipulate that the development is to be in accordance with the submitted architect’s drawings.

But what happens when another party buys the development site? Can it use those architect’s drawings without infringing the architect’s copyright?

The starting point is to look at the appointment between the architect and the original employer. That will usually provide that the architect will retain copyright of the drawings. At the same time, the architect will (usually) grant a transferable licence to use those drawings, strictly for the purposes of the project. If the employer sells the site, it will transfer this licence to the purchaser.

Where there is no such express provision in the appointment, there will be an implied licence in favour of the employer to use the drawings for all purposes connected with the development to which the plans relate and that it can transfer that licence to a purchaser of the site.

So what this means is that, if the purchaser purchases the site from the party that employed the architect, then licence to use those drawings will be passed on to it.

However, sometimes the architect’s employer might not be the same party that sells the site. If that is the case, then the purchaser of the site will probably not obtain licence to use the drawings and, if it uses them in any way, it will infringe the architect’s copyright in the drawings and be liable for substantial damages. This is what happened to Fortis Developments Limited (Fortis) when it purchased a development site in Sheffield.

Another developer, Signature Realty Limited (Signature) had obtained planning permission to develop the site for student accommodation. As part of its planning permission, it instructed architects to draw up plans. The planning permission that was subsequently granted provided that the development was to be in accordance with these plans.

However, Signature never actually owned the site. Fortis went ahead and purchased it from the owner, Branchester. Since Fortis also wished to develop the site as student accommodation in accordance with the planning permission, it wished to use the architect’s drawings.

Unwisely, it did not go to either Signature or the architect to obtain those drawings. Instead, it went onto Sheffield City Council’s planning portal website and downloaded them. It used the drawings for marketing, development and construction purposes. Although it eventually instructed its own architects, those architects based many of their drawings on the original architect’s drawings.

Fortis downloaded the drawings in breach of the terms of the planning portal website and without the permission of either Signature or the architect. Signature found out and sued Fortis for breach of copyright (the architect had transferred copyright to Signature to enable it to do this).

In Signature Realty Ltd v Fortis Developments Ltd [2016] EWHC 3583 (Ch) Fortis tried to argue that it had an implied licence to use the drawings, which was transferred to it when it purchased the site. Unfortunately for Fortis, however, this argument did not work, because the architect’s employer (Signature) was not the seller of the site. As such, licence to use the drawings had not been transferred to Fortis.

Conclusion

When acquiring a site, a purchaser must check carefully that the seller actually has a transferable licence to use the architect’s drawings. If not, they must negotiate a transfer of the relevant licence with the party that actually owns it. If it fails to do this, the purchaser may find that it is in breach of the architect’s copyright.