Have you “been inspired by” or taken something to use in your business, beware!

There is a common, and potentially very costly, misconception that changing a copyright protected work by 10% (or any other percentage for that matter) or only reproducing a smaller proportion of a protected work will mean that one can avoid liability for copyright infringement.

This is not correct.

Unlike other intellectual property rights, copyright does not require any application or registration – copyright occurs automatically as soon as the work is created.

Under Australian law copyright infringement occurs when the whole of, or a substantial part of, a copyright protected work is reproduced. However, the term substantial is not defined in the Copyright Act but in the decision of Barrett Property Group Pty Ltd v Dennis Family Homes Pty Ltd [2011] FCA 246, the Federal Court found that the determination of what is “substantial” is not a quantitative assessment and whilst the part of the work that is reproduced must be a substantial part of the original copyright work, it need not form a substantial part of the infringing work.

Barrett Property Group alleged copyright infringement related only to a specific section of their “Seattle” and “Memphis” house designs, a group of rooms and spaces around a covered outdoor alfresco dining area. It was not alleged that the area was exactly reproduced in any of the Dennis Family Homes’ house plans and it was acknowledged that the corresponding Dennis Family Homes’ alfresco dining area included a number of different features and details.

However, the Court found that the Barrett alfresco area was a substantial part of the copyright protected work belonging to Barrett Property Group, and that there was sufficient similarity between that and the alfresco area in the Dennis Family Homes’ house plans to establish that infringement had occurred.

The Court held that the Barrett alfresco area was “both striking and distinctive” and constituted an essential or material part of the copyright protected work belonging to Barrett Property Group when regarded as a whole and while there were differences in the house plans overall in terms of dimension, proportion, feature and detail, there were great fundamental similarities which acted to create the same impression and ambience.

As such, a similar but far from identical version of the alfresco dining area – despite being only a part of the overall house plans – was considered a substantial part of the copyright protected work and infringement was established based on an overall impression.

In conclusion, businesses should be aware that if they have taken, “or been inspired by”, something that is worth using then they’re probably using enough to warrant checking whether it is needed to get permission from the proprietor.

To assess your organisation’s copyright liability or to investigate if your copyright has been infringed, contact us.