PARTIAL FULFILMENT OF THE REQUIREMENT FOR THE COURSE Research Essay

In this instance, Mr. and Mrs. Trump engaged Bob Smith Architects to help them with the design and creation of plans for a house they wished to construct on their property in Queensland. The Trumps made a number of contributions, such as sketches and verbal discussions with the architect about the anticipated home. The Trumps and the builder collaborated on the house’s design to create a standout structure for the neighborhood. Mr. Vic Lim bought the house from the Trumps at $1,500,000, and after a year, Mr. and Mrs. Wolf, the other potential buyers that had been disappointed, paid $1,000,000 to SCB constructors to use the plans that had been utilized in the construction of the Trumps house to build them a house.

When Mr. Vic Lim learnt that the plan that built his house would be used, he told SCB that he had the copyright of the plans and did not want the construction of a house that was similar to his. He was so determined to ensure that the builders did not use his plans, but the Wolfs and the builders went ahead and used them to build the new house. Although the final product was a house with alterations in the exterior features, it resembled Mr. Vic’s house and could be perceived as a reproduction of plans designed by Smith and Trump. Despite the fact that the builders had reassured Mr. Vic that they would show him the plans before completing the house so that he would comment on it, they declined showing him the complete plans. In addition, even if the Wolfs knew that Mr. Vic was angry regarding the building, they evaded any contacts with him.

This is an essay that is intended to identify the legal issues in the scenario, what Mr. Vic, who is the plaintiff in the case will prove to get an action in the infringement of copyright and the manner in which the Wolfs and their builders, SCB will react to the complaint. In addition, the essay will discuss the possible outcomes of the case as well as the kind of remedied that will be available to Mr. Vic in case he proves his case. To achieve this, the essay will identify the main stakeholders and their concerns and goals, the problems presented in the case, analyze substitute solutions and offer recommendations.

IDENTIFICATION OF THE ISSUES, OBJECTIVES AND CONCERNS OF STAKEHOLDERS

The defendants, the Wolfs and SCB would refute infringement of copyright or any form of conversion, and say that the design of their plans that were used to construct the new house as well as the constructed house itself did not reproduce the plans by Smith and Trump, which Mr. Vic Lim had copyright for. The defendants would go further to say that there was no copyright infringement because Smith did not have copyright in the Smith and Trump plans. In addition, the defendants would deny that even if Smith had the copyright, he had not yet legally assigned the building plans to Mr. Vic by the time they built their new house.

In addition, based on the case, the defendants may plead that Smith was not the true author of the works that encompassed Smith-Trump plans, and therefore, those plans cannot be seen as a creative artistic work entailed in the copyright Act meaning. If the plans were inventive works that were original, it was the Trumps that invented the expression of art that is embraced in the plans. The case asserts that the Trumps enormously contributed to the ultimate plan by offering many sketches and oral communications with the architect.

LEGAL ISSUES IN THE CASE

The main problems are;

Was Smith the copyright’s owner in the produced plans?

Was there an effective copyright assignment of the plans?

Were the plans used in the construction of the Wolfs’ house a reproduction of the plans used to construct Mr. Vic’s house?

Was the constructed Wolfs’ house a reproduction of the plans by Smith and the Trumps?

In case there was copyright infringement or conversion, what awards should Mr. Vic get as remedies?

WHAT MR. VIC MUST PROVE FOR HIM TO BRING AN ACTION IN INFRINGEMENT OF COPYRIGHT

The plaintiff in this case is Mr. Vic Lim, who according to the case believes that the Wolfs and SCB builders converted the plans that he had copyright to, and used them, thereby infringing the copyright by considerably reproducing the plans and building a new construction that was noticeably based on the plans. He therefore, must prove that Smith was the copyright’s owner in the plans that built his house. According to the case, the Trumps hired Smith to help them design and establish the general plans for their house. There were several contributions from the Trumps especially regarding the finishes of the house and its size. They also provided the architect with many sketches. However, Smith worked on the design for more than 150 hours and came up with what seemed like Moroccan-Mexico effect. Based on IceTV Pty Ltd v. Nine Network Australia Pty Ltd, for copyright to subsist, originality asks for the questioned work to have been invented by the author and not merely being copied from other works. An author or more than one author should be the one bringing into existence the work that the Act protects. Therefore, in this case the plans were original and protected. In addition, Mr. Vic has to prove the existence of an effective assignment of copyright of the plans. Under section 196, the Act allows assignment of copyright for the parts of the duration when it subsists. The assignment should be done in writing and the assignor must sign it or it must be signed on assignor’s behalf. The plaintiff should go further to show the court that the Smith-Trumps house plans were converted by both the Wolfs and their builders, SCB to plans used for the new house that was built for the Wolfs, who in this case are one of the defendants. He has a duty to clearly show that the Wolf house plans were reproduced or substantively reproduced from the house plans of Smith-trump, whose copyright he has. In connection to the plans, he has to show vividly that the Wolfs’ house was built by reproducing or noticeably reproducing his house. Moreover, Mr. Vic has to prove that the copyright was impinged on by the house plans or the building of the Wolfs’ house. Mr. Vic should also submit that after knowing the intentions of the Wolfs to construct a house that was similar to his, he clearly made them aware that he did not want a copy of his house to be built. He should go on and testify regarding his meetings with the builders and their assurances that they would let him see and comment on the plans before completion of the second house, which they refused to show him and went ahead to build a similar house to his.

HOW MR AND MRS WOLF AS WELL AS SCB WOULD RESPOND TO THE COMPLAINT

The defendants must respond and argue against the originality of the Smith-Trumps plans. They must ascertain that the original plans that were used to construct Mr. Vic’s house that he bought from the Trumps were not an inventive work in the definition of 1968 Copyright Act. They must also show that there was not existence of copyright in the plans of the house that belonged to Mr. Vic. They must go further and submit that the purported house plans were a work of Joint authorship of Smith and the Trumps. In addition, the defendants must argue and prove that there was no effective assignment of the house plans to Mr. Vic. They must ascertain that there was no copyright of the Smith-Trumps plans, and in case there was, then the copyright was not effectively assigned to Mr. Vic.

THE PROBABLE OUTCOME OF THE CASE AND REMEDIES AVAILABLE FOR MR. VIC IF HE PROVES HIS CASE

It should be noted that the claim by Mr. Vic pursues imposing rights that the 1968 Copyright Act confers. The Act expresses the enforceable legal rights of artists of creative works. According to section 32 of the Act, an author that is a citizen or resident of Australia has copyright to artistic works that are original. Notwithstanding their inventive quality, drawings, building models as well as buildings fall under artistic works definitions as shown by section 10 of the Act. Therefore, houses as well as their associated building plans are works of art. Although Mr. and Mrs. Trump were initially involved in the establishment of plans that were used to build their house and the case has clearly indicated that the Trumps continued providing inputs towards the design. However, this does not disqualify the subsistence of copyright in Smith’s works that were original in expression. As decided in Coles v Dormer & Ors, the fact that the Trumps provided some in puts as Smith progressively produced the house plans did not make the Trumps the plans’ joint author. Based on section 35, the owner of the copyright that subsist in a given work is the author, and since section 196 regard it as property that is personal, it can only be transferred by assignment, which according to this case has not yet occurred by the time the new building was completed. The Act also provides that infringement of copyright occurs when an individual does or authorizes someone else to do an act that copyright entails with no owners license. There was a direct proof that the Wolfs and SCB knew about Mr. Vic’s concerns regarding copyright acquisition.

Lastly, there is a problem regarding infringement remedies, where the court has a duty to identify the remedies that Mr. Vic should be bestowed upon establishment of copyright breach. Under section 115(2) rewards for infringement are an injunction, damages or profits accounts.

RECOMMENDATION

In regard to the external characteristics of the Wolfs’ house, they should be sufficiently altered so that it does not seem like a reproduction of Smith-Trump house plans.

BIBLIOGRAPHY

Coles v Dormer & Ors [2015] QSC 224

Davison, Mark, Ann Monotti, and Leanne Wiseman. Australian intellectual property law. Cambridge University Press, 2015.

IceTV Pty Ltd v. Nine Network Australia Pty Ltd, 2009 H.C.A. 14, 239 C.L.R. 458 (2009).

McCulloch, Audrey. “Australian Law Reform Commission Copyright and the Digital Economy.” 2013.

Sweeney, Brendan, Bender Mark and Courmadias, Nadine. Marketing and the Law, 5th edition. Australia: LexisNexis Butterworths. 2015.