Michael Ford (post until Oct. 31/19)
Civil Litigation

Toronto house copyright case raises questions about the law

A case involving a Toronto couple who alleged their neighbours copied the look of their home highlights how housing architecture can be copyrighted but to prove it, the structures have to be identical and there must be evidence to show one was essentially replicated, says Toronto civil litigator Sarah O’Connor.

“Most people don’t realize that architecture is art and it can be protected by copyright,” she tells AdvocateDaily.com

To prove it, you have to point to how unique aspects of the design were copied and that can be difficult.

"There is a fine line between making a compliment in the repetition of a design and making a strict reproduction."

O’Connor, principal of O’Connor Richardson Professional Corporation, says in looking at copyright, such things as what makes the building unique is considered.

For example, if a person copied the design of the OCAD University building in Toronto and erected it next door that would clearly be copyright infringement, she says.

But for two homes or commercial buildings to share the same style is not copyright infringement, she adds.

In the Toronto dispute, a Forest Hill couple took their neighbours to court, alleging their home was renovated to be “strikingly similar” to theirs, reports the Toronto Star. They filed a lawsuit against the owner of the remodelled home, her builder husband and architect brother-in-law for copyright infringement in federal court. They also filed the suit against the real estate agent who profited from the house’s sale after the renovation and the contractors who worked on it, the article says. 

The couple sought $1.5 million in damages, $20,000 in statutory copyright damages, $1 million in punitive damages and a mandatory injunction on the defendant to change her home’s design, says the Star

The renovated home’s owner denied the allegations and said it was inspired by Tudor stone cottages and that the window colour, doors and stonework, as well as the application of the Tudor-style stonework for a facade has been common for centuries and is not protectable by copyright, the article says. 

Even though the dispute went on for three years, the allegations weren’t proven in court and the parties settled; the terms of the settlement weren’t disclosed, says the newspaper. 

O’Connor says normally copyright rests with the creator and generally speaking when it comes to homes and other buildings, the copyright sits with the architect and not the homeowner.

“It’s usually an architect suing another architect firm for the plans,” she says. 

O’Connor says there are few cases of copyright infringement involving homes in Canada and the Toronto matter may be one of the first. 

“It’s a unique area of law,” she says. 

But there are many such cases in the United States, she says. 

O’Connor points to a news report about a home developer south of the border that used the law to go after people who had similar homes. According to the article, the firm would tell its employees to drive around to copyright troll, looking for houses they could sue over and promised the workers a cut of any proceeds.

There are copyrights and moral rights attached to a design, O'Connor notes. For example, an architect can own the copyright of the blueprint for a building so if someone tried to copy it exactly, the architect can sue, she says. 

If a builder changed a design during the construction process, they may infringe the moral rights of the architect as the design's creator, she says.

O'Connor says the Toronto case raises questions about the law around copyright and homes.

There has been so little litigation around housing copyright in Canada that the law remains somewhat unclear, she says. 

"The law is clear around house plans," she says. "But there is little precedent in Canada involving infringement of architectural works.

"The Canadian standard form of agreement for architectural services, between an architect and a client, does not contain any provisions with respect to the copyright of the building itself."

O'Connor says Canadian architects are likely paying attention to the Toronto dispute because it calls attention to the issue of copyright and housing. 

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