Developers - secure copyright in plans or risk damages and injunctions

In the recent Signature Realty Ltd1 case the High Court considered whether or not a developer had infringed copyright in relation to drawings produced for another party.

Signature Realty Ltd (Signature) had engaged architects to produce drawings for a student accommodation project and it subsequently secured planning permission for the project. The architect retained copyright in the drawings and had granted a licence to Signature to use them. However Signature found that it could not fund the development and the landowner sold the land to Fortis Developments Ltd (Fortis).

The planning permission for the project required that it should be developed in accordance with the approved drawings. Fortis used the approved drawings as a basis for developing the project, although it did not copy them in every respect. Fortis also used the drawings during the promotion, marketing and construction of the project. Signature sought to claim damages for copyright infringement and an injunction against Fortis.

The High Court held that:

• the planning permission did not belong to Signature and that there was no copyright in the planning permission itself, it ran with the land
• the copyright subsisted in the original artistic works
• the copyright had been infringed by Fortis’s use of the drawings for marketing or architect tendering and estimating purpose
• the use of the drawings to construct the project infringed in some respects the copyright, where the building was sufficiently similar to the drawings
• the creation of computer generated images used in marketing materials did not infringe copyright as they were not derived from a substantial part of the drawings
• Signature was entitled to damages
• the calculation of additional damages would take into account that Fortis had fairly believed that it was not infringing the copyright. In this case Signature has not established that Fortis’s infringement was committed flagrantly, therefore the claim for additional damages was rejected, and
• an injunction was refused as Signature could not establish that it was required to protect any legitimate interest that it retained in the copyright.

Comment

The Signature Realty Ltd case is a useful reminder to developers that they should ensure that they have the right to use drawings and to rely on reports and other documents produced for the purpose of securing planning permission, especially when a property is being bought from someone other than the applicant. Had Fortis developed the project wholly in accordance with the architect drawings, the outcome of the case may have been more costly and onerous to it.

Legal and other advisors should also ensure that such rights and reliance are secured when acting for developers acquiring land with the purpose of implementing a planning permission which another party has previously secured.

1Signature Realty Ltd v Fortis Development Ltd and another [2016] EWHC 3583 (Ch), 17 February 2017