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imagined. You have a site. You give an option to the developer to purchase this website provided planning permission is obtained. You get planning permission, using the layout drawings prepared by the architects you share, but Purchase option The site is expired. You are selling the site (which now comes with planning permission) to another developer. So far it’s pretty straightforward, but then the new developer directs his architects to prepare more plans and building drawings that rely heavily on drawings designed for planning application purposes. The original developer (who owns the Copyrights in plans) things.
Sure, they don’t have an issue? After all, you own the land and have the advantage of planning permission based on drawings made specifically for the site, so you must own the copyright in any drawings relating to the land.
The court said in the last case of “Oh no, don’t.”
Lennox Estates Ltd vs. S&W Ventures Ltd, which provides a reminder of the care to be taken when purchasing land with planning permission and when reusing plans and drawings obtained by a previous owner or developer when requesting planning permission.
This blog takes a closer look at this case.
The facts were largely as described above.
The defendant site owner and the claimant real estate developer have entered into an agreement under which the plaintiff is entitled to purchase the site if he obtains planning permission.
The plaintiff hired architects to draw some sketches (let’s call these original sketches) and duly succeeded in obtaining planning permission. Copyright in the original graphics It was assigned by the architects to the plaintiff (and even if the plaintiff failed to obtain this waiver, the architects themselves would have had title in the works and would have been able to challenge other uses for these drawings).
The option to buy the site then expired (the plaintiff said this was due to a market downturn) and the site owner sold the site (with planning permission) to another developer (the defendant developer for our purposes). Subsequently, the respondent developer instructed its architects to adapt the plans and to apply for a change of planning permission.
issued the demands hasty judgment Actions against both the defendant website owner and the defendant developer alleging copyright infringement in the original graphics. He argued that the original drawings themselves were being copied or that a temporary set of drawings based on the original drawings had been copied by the architect of the defendant developer, which is an indirect violation of copyright in the original drawings.
The respondent developer denied copying the original graphics and said that the respondent site owner was entitled to use the original graphics to the extent necessary to exploit the site on the grounds that if the option was not exercised, the benefit of any layout consent would pass to the site owner and therefore the site owner would get a file license Under copyright in the original graphics.
The court ruled in favor of the plaintiff. Key points from the judgment included:
- The original drawings attracted copyright protection and went so far as to remain copyright, on the grounds that architects expend necessary “intellectual creativity” when creating them. Interestingly, they might not have done so had they been “slavishly copied” from the design of the buildings already on the site but the court felt that the defendant would not be able to prove that this was the case here.
- The architects of the defendant developer had largely copied the original drawings, and so there was no real possibility of establishing that using the original drawings to construct the buildings would not infringe copyright.
- There was no possibility in the trial of the respondent site owner that the agreement between him and the claimant developer shall be construed to mean that:
- If the plaintiff fails to exploit the planning permission, the site owner can do so; or
- it was there implied clause In that agreement, the plaintiff’s failure to exploit the planning permission gave rise to an implied provision that the site owner must obtain a copyright license on the original graphics; or
- The owner of the site has the right to sub-license any other developer of his choice to allow him to exploit the original graphics.
This decision is notable for the protection it afforded the original developer – it was felt that the developer’s participation in creating the original graphics (which the judge described as involving expenses plus “expert input”) was inconsistent with the option agreement including the implied provision of a license to use graphics to another developer. This might make sense in commercial terms – why should a later developer ride for free on the investment made by a previous participant?
So where does this leave a developer who just got a site with layout permission?
Ideally, before the developer buys the site, they should consider who owns the copyright in the graphics that have been used for planning permission and ask appropriate questions in the due diligence stage about the scope of any right to use the graphics. To the extent that you want to use those graphics that may have been produced for a previous owner or in an earlier stage of the development process, you will need to obtain permission from the copyright owner.
Even if the license is granted, it may not extend to all purposes for which the subsequent owner may want to use the graphics, so you will need to review them carefully. It would be an unwise developer to assume that even fairly general development plans produced by or for a third party are free to use, whether because the graphics seem too basic to attract copyright protection in the first place or because they believe the right to use them with Sell the land.
The content of this article is intended to provide a general guide to the topic. It is recommended to take the advice of specialists in such circumstances.
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