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Fort Knox for Fortis: court rules on infringing copyright use of architectural drawings used for planning application

Last year we published a post describing the various intellectual property rights that exist in buildings. We focussed on the copyright, trade mark and design rights that can subsist in building structures and their distinctive elements. Following the recent High Court decision in Signature Realty Ltd v Fortis Developments Ltd [2016] EWHC 3583 (Ch), we are today focussing on the intellectual property rights and commercial value that exists in the architectural drawings for buildings.

Last year we published an article describing the various intellectual property (IP) rights that exist in buildings. We focused on the copyright, trade mark and design rights that can subsist in building structures and their distinctive elements. Following the recent High Court decision in Signature Realty Ltd v Fortis Developments Ltd [2016] EWHC 3583 (Ch), we are today focusing on the IP rights and commercial value that exists in the architectural drawings for buildings.

Signature Realty and Fortis Developments both wanted to purchase the same site in Sheffield. Following exchange, but prior to completion, Signature Realty was granted an application for planning permission based on a number of architectural drawings it had commissioned from a firm of architects (C&W). The planning application was granted on the condition that the site was developed "in complete accordance with" the C&W drawings, which were published on the planning portal. The rights in the drawings were owned by C&W, but Signature Realty was granted a licence to use the drawings in connection with the development.

In an unfortunate turn of events, Signature Realty was unable to secure finance in time and the site was purchased by Fortis Developments. Fortis Developments subsequently used the C&W drawings that had been published on the planning portal for promotion, marketing and construction purposes for the development. Upon becoming aware of this, Signature Realty purchased an assignment of rights from C&W in the drawings and issued proceedings against Fortis Developments for copyright infringement.

The High Court found that Fortis Developments had indeed infringed the copyright in the drawings and that damages would be payable. The court briefly considered whether additional damages should be payable due to the infringement being deliberate and calculated, but dismissed this on the facts.

Comment

So what's the take home from this case? Firstly, it demonstrates how important it is to check the rights in any published materials before they are used. Just because something is available online, it does not mean that it can be used indiscriminately.

The second, less obvious point, relates to the commercial use of IP rights in this case. Although Signature Realty was unsuccessful in securing the development, it very cleverly sought ownership of the drawings for the purposes of securing a commercial advantage and to initiate copyright infringement proceedings. The initial outlay involved in acquiring these rights and initiating the proceedings may have deterred many from pursuing this avenue, but it seems to have paid off in this instance. It is an intelligent use of copyright to pursue a commercial advantage.

With thanks to Sarah Lennon for her contribution to this blog.

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