Question
of the week Question of the week

Curious. Interesting. Informative.

29 March 2019

Best laid plans

Other
Federal

Asked

Intellectual property - Copyright and architectural plans

Our client has engaged an architect who has drawn plans and applied for a planning permit, which has been approved by the local council. The clients do not intend to further pursue work with the architect. Does the architect have the right to withhold the copyright to the plans? The construction drawings have not been completed. The project has not been initiated. The architect’s invoices have all been paid. 

They have the planning permits but not the building permits. Can these clients use the plans they have paid for and engage a different architect to complete the construction drawings? Or does the architect own the copyright to them? If, in the circumstances, the architect does own the copyright, does this mean the client is simply out of pocket with no useable plans?

There was no formal engagement contract with this architect.

Your assistance is greatly appreciated.

Answered

Thank you for the question.

Architects own the copyright in the work they produce and can enforce that right, subject to the terms of any agreement between the architect and the client. However, where no agreement exists there is an implied licence whereby a client who commissions an architect to do specific work may, if the relationship ends, use the architect’s work for the purpose for which it was commissioned. That applies even where the work is completed by someone else and even where the client has not paid the architect. See Gruzman Pty Ltd v Percy Marks Pty Ltd (1989) 16 IPR 87.

So, yes, the client can use the plans.

Note that there can often be dispute over the precise terms of the implied licence, usually as to the scope of the commissioned works – especially where no formal agreement exists to define the scope. The High Court examined such issues in Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55, where Gruzman was cited with approval.

Regards

Mentor