Copyright dispute with timber frame company. Help.

[Paulp1]

Hi First posting, I was going to help a friend with their new build. She is planning to demolish her current house and build new on the footprint.
 

She had plans and designs done by a timber frame company.

She was to do ALL the groundwork’s footings, slab, drainage and services. They would then come and erect a timber frame and roof. Internal walls, no plumbing,plaster, nor electrics.

she was then to do the exterior shell which, on their design was to be a mix of brick and cladding.

 

she has changed her mind and wants a traditional build block and brick. New drawings, different materials, no timber no cladding no chimney, different layout upstairs, different position of velux etc.

 

They have frightened her to death in that they have threatened her with legal action if she uses their design/plans. 
 

Can we build this with my suggestion above new drawings, different materials, layout etc. without copy right issues or threats.

 

Thanks in anticipation.

[markc]

If they did the design then yes they own the IPR (intellectual Property Rights). If you build the house but with different materials then they have a good case to stop you or want the design fees. Changing a couple of bits is not scrapping their ideas and doing something different.

if you do want to use their layout and general appearance then I would be approaching them and asking for a settlement on the design costs.

[joe90]

To my mind that’s unfair, if the design is based on the original footprint then that is a constraint, changing from timber to brick and block is a complete change. How much would she have to change (ceiling height, ridge height the odd window position etc) to not have to pay their design cost. I would fight it but ask them what their design cost would be beforehand.

[Kelvin]

Most timber kit companies have this as part of their terms including if you copied their basic designs from their website information. As above ask them what their design fee is and pay it if it’s reasonable and then you have no problem. Alternatively you need a new design scheme. 

Edited September 26, 2022 by Kelvin

[jack]

42 minutes ago, Paulp1 said:

Can we build this with my suggestion above new drawings, different materials, layout etc. without copy right issues or threats.

 

Even if she was completely in the right, nothing can stop the company threatening her.

 

However, in this case she's probably not in the right. Changing cladding, moving a velux, and adjusting a couple of walls upstairs is extremely unlikely to overcome copyright. 

 

More to the point, your friend has basically had the equivalent of an architect or at least architectural designer design her an entire house. Why would she expect to have the benefit of that work product for free? 

 

I base this on your statement that the timber frame company did the "plans and designs". If they just did construction drawings based off someone else's designs, that would likely be a different thing.

 

25 minutes ago, joe90 said:

To my mind that’s unfair, if the design is based on the original footprint then that is a constraint

 

A constraint that a different designer would likely not deal with in an identical manner. If you give 10 architects a footprint, you won't get 10 identical designs. I know, because we had a footprint constraint on our site, and the various initial sketches we got back from the architects we approached were different from each other (in some cases wildly so). 

 

26 minutes ago, joe90 said:

changing from timber to brick and block is a complete change

 

Copyright is in the design, not the construction method. Changing construction method has zero impact on whether she'll infringe copyright in the original design.  

 

25 minutes ago, joe90 said:

How much would she have to change (ceiling height, ridge height the odd window position etc) to not have to pay their design cost. 

 

If she copies the design, minor changes like these will not save her, especially if it's seen that the changes are to try and get around copyright.

 

 

[Dave Jones]

do the shed companies plans show internal block walls ?

 

No ? then they are completely different.

 

Tell them to go sing.

[Bonner]

I agree with all the other posts, beware and be fair!

[jamieled]

Some comments here seem to suggest the client may be getting the benefit of 'free' design services. If she's paid for the timber frame design (even if she now wants something slightly different), then it's not free, she's paid for it. Copyright may still apply, but that's a separate issue.

 

To the OP: RIBA have some advice on their website around copyright and architectural design, may be worth a look.

[nod]

I would go ahead regardless The time and money and bad publicity Wouldn’t be worth for the TF company 

In any case it would be so hard for them to prove 

Empty threats It sounds like you have had a lucky escape 

[Kelvin]

1 minute ago, nod said:

I would go ahead regardless The time and money and bad publicity Wouldn’t be worth for the TF company 

In any case it would be so hard for them to prove 

Empty threats It sounds like you have had a lucky escape 

Lucky escape from what? Most if not all timber companies that do designs or have standard designs have this in their terms. 
 

 

[AliG]

Can you clarify -

 

Did she already pay the timber frame company for the drawings? If so then you should own them, if not then they need to be paid for their work.

 

Considering what they are saying I suspect not.

 

I am appalled at comments suggesting that it's hard luck on the timber frame company and just ignore them. I hope other people don't do work and then not get paid for it and get told that it's just hard luck.

[markc]

34 minutes ago, AliG said:

 

I am appalled at comments suggesting that it's hard luck on the timber frame company and just ignore them. I hope other people don't do work and then not get paid for it and get told that it's just hard luck.

Well said! It’s bad enough doing detailed quotes and then not getting the work but how many people are happy to carry out work and then not get paid with the client using an excuse like I’m going to get someone else to finish it

[Ferdinand]

I think you have most of the info you need in the comments above. Mine would be:

 

1 - The threat of legal action is not something necessarily to be scared of. Going "hammer-and-tongs or ignore" in return can be a mistake. Firstly, they want her attention. Perhaps looking for a middle way is a way ahead?

 

2 - Perhaps she should find out what fee will be charged for using the TF company's work. It may be acceptable to her. Or a counter-offer could be made. Their risk is that they may be known as a soft touch for further copyright violations; her risk is a sum of money. Who has a bigger motivation or ability to defend their interest?

 

Due to bespoke requirements, they have probably spent professionals' time on her project, so they are understandably narked if the intention is to use their work, unpaid. I would guess at several days time, at perhaps £250-500 per day.

 

3 - My opinion is that she needs to have a candid conversation with the TF supplier.

 

4 - For risk management, she *could* check out how litigious they actually are. What is the riak of legal action? 

 

5 - For *you*, remember that there are cases when an opinion such as yours offered to a friend has been deemed to be "legal advice", so make sure that you have no potential liability.

 

My thoughts, which are explicitly *not* legal advice.

 

Ferdinand

 

[SteamyTea]

49 minutes ago, AliG said:

Did she already pay the timber frame company for the drawings? If so then you should own them, if not then they need paid for their work

I paid Microsoft for a version on Windows, I don't own it, just the right to use it.

 

Really a case of each component needs to be paid for, and that should be made clear at the start, as well as who keeps ownership.

If, as some architects think, only they can own a design, even whether paid for or not, then the terms need to be clarified at the very beginning.

 

May be worth picking the design apart and finding out which parts are genuinely new and unique. Bet the windows and doors, roof and guttering are not.

That just leaves walks and location of them, probably not hard to find something similar with Google images.

Then ask them what they have actually come up with that is unique.

 

https://www.gov.uk/copyright 

 

Seems all the nonsense I spout on here is copyrighted.

You are all (expletive deleted)

 

 

 

 

Edited September 26, 2022 by SteamyTea

[nod]

2 hours ago, Kelvin said:

Lucky escape from what? Most if not all timber companies that do designs or have standard designs have this in their terms. 
 

 

😂😂😂😂

[Kelvin]

4 minutes ago, nod said:

😂😂😂😂

What’s so funny? 

[jack]

2 hours ago, nod said:

In any case it would be so hard for them to prove 

 

Not even slightly.

They have a written evidence trail showing that she engaged them to do design work for her, that they did the work and gave her the drawings, that she changed her mind and is now building something very similar with a couple of walls and a velux moved.

 

The public planning submissions will show them exactly what she's planning to build, too, so she can't even rely on them being ignorant of her actual intentions.

  

3 hours ago, jamieled said:

Some comments here seem to suggest the client may be getting the benefit of 'free' design services. If she's paid for the timber frame design (even if she now wants something slightly different), then it's not free, she's paid for it. Copyright may still apply, but that's a separate issue.

 

Even if she's paid a design fee, the amount paid may have been set on the understanding that she was going to use the TF company for the build. In that case, the amount she paid may not have been what she'd have expected to pay for just the design work alone. So not "free", but you can't conclude that just because something was paid that there's no moral case to be made against her using the plans.

 

Also (and as you say), even having paid a reasonable fee might not grant rights in any circumstances other than the TF company doing the build. Many (most?) architects and architectural design companies will retain copyright in their designs even if they're paid for.

 

2 hours ago, SteamyTea said:

May be worth picking the design apart and finding out which parts are genuinely new and unique. Bet the windows and doors, roof and guttering are not.

That just leaves walks and location of them, probably not hard to find something similar with Google images.

Then ask them what they have actually come up with that is unique.

 

No.

 

Unlike some other forms of IP like patents and trademarks, there is a subjective element to infringing copyright. The clue is in the name: copyright. 

 

If you do what's in the claims of someone else's patent, or you use someone else's registered trademark, it isn't relevant whether you copied it or came up with the idea entirely independently. The question is simply whether what you're doing infringes the registered rights.

Copyright is different in that you need to show actual copying. If a potential infringer can show that they came up with even exactly the same design without knowing about the earlier work, then they won't be found to infringe (look at the recent Ed Sheeran case, which dealt with this issue). This is why showing that what's being built is similar to something else found online is irrelevant to whether the design was copied. It was by definition "copied" because that's what the evidence says.

 

The test allows for variations from what's been copied. Showing that you've made changes is not enough to show you haven't copied. Making changes specifically to avoid copyright is even less likely to get you off the hook.

 

You also can't avoid infringement by showing that elements of the design are known. It's the work as a whole that needs to be assessed.

[Mr Punter]

If the TF firm did the Planning App drawings the client is on dodgy ground and may need to submit a fresh application with a substantially different design if she wants to avoid being sued.

[nod]

I would go ahead regardless The time and money and bad publicity Wouldn’t be worth for the TF company 

In any case it would be so hard for them to prove 

Empty threats It sounds like you have had a lucky escape 

 

A lot of IFS 

[Kelvin]

4 minutes ago, nod said:

I would go ahead regardless The time and money and bad publicity Wouldn’t be worth for the TF company 

In any case it would be so hard for them to prove 

Empty threats It sounds like you have had a lucky escape 

 

A lot of IFS 

Are you stuck on repeat? 

[nod]

20 minutes ago, Kelvin said:

Are you stuck on repeat? 

Are you a bit Slowwwww

[jack]

In practical terms, you may well be right that the TF company won't sue, but this:

 

12 hours ago, nod said:

In any case it would be so hard for them to prove 

 

... is 100% wrong. 

 

And even if you're right on the practical reality, the OP didn't ask whether they can or should just press on irrespective of the legal position. They asked:

 

23 hours ago, Paulp1 said:

They have frightened her to death in that they have threatened her with legal action if she uses their design/plans. 
 

Can we build this with my suggestion above new drawings, different materials, layout etc. without copy right issues or threats.

 

The plain answer is no, because nothing can stop the TF company proceeding as far along the process as they choose. They might decide it's worth at least a letter before action even if they have no intention of litigating. Do you think a letter from a lawyer threatening the OP's friend with court will lower her stress levels?

[joe90]

23 hours ago, joe90 said:

ask them what their design cost would be

This is what I said yesterday, always worth asking 🤷‍♂️

[jack]

24 minutes ago, joe90 said:

This is what I said yesterday, always worth asking 🤷‍♂️

 

Agreed that this is the right answer, once you've checked a couple of other things.

The main question is: what does the contract actually say? Without knowing that, everything else is just speculation.

 

I wouldn't assume that any particular company deeply understands the contracts they use with their customers, so double check what has been paid for, where the copyright ends up, and what rights the customer has in the circumstances. The last bit may not be explicit, especially if their contract assumes the customer will always use the TF company for construction.

 

If (and it's still a big "if" based on what we know) you pay someone to design a building, you have an implied right to build that building without further permission or payment, even if the designer retains copyright as a result of the contract. But the contract may also say that they only design as part of a package and don't grant rights to use drawings separately, for example. Strictly speaking that could be a problem.