Although the Toronto housing market may be constantly scrutinized by the Canadian media, it is not often that a copyright infringement case becomes a matter for public consumption. However, the Toronto Star published an Article reporting a settlement between homeowners regarding the alleged infringement of an architectural work.[1] Despite settling, the facts highlight two common difficulties present in asserting copyright in the design of a house as a homeowner.
The plaintiffs, the Chapniks, own an architect-designed, multi-million dollar home in the Forest Hill neighbourhood of Toronto. In 2013, the defendants bought a house nearby and promptly began renovations. According to the plaintiffs, the renovated house looked “strikingly similar” to their home and the Chapniks commenced an infringement action.
Architectural works may be protected by copyright as an “artistic work”.[2] However, in asserting infringement claims regarding housing designs, homeowners (Chapniks included), face two significant obstacles. They are required to prove: (1) ownership in the copyright; and (2) that the defendants reproduced a substantial part of the expression.
Ownership
In order to succeed in an infringement action, the plaintiff must be the owner of the copyright. In Canada, the author of the work is the first owner.[3] With respect to architectural works, it is usually the architect who is the first owner of the copyright that subsists in the design of a house.[4] In the case of Hay v Sloan, the court stated, “[f]or copyright purposes, the owner of the architectural work of art is the author of the plans … [n]or does copyright pass to the owner of the building.”[5]
Similarly, in Chancellor v Oasis, the court concluded that it was the architect who was the owner of the copyright and not the owner of the building. The owner’s contribution was “limited to suggesting certain design elements in a general way”, while it was the architectural firm that implemented these suggestions into the design.[6]
Therefore, had the Chapniks’ case gone to trial, unless the architect assigned to them the copyright, it seems unlikely that the Chapniks could have succeeded since they are not the owners.
Reproducing a Substantial Part
Copyright provides the owner with the sole right to reproduce the work in a substantial part.[7] Copying is not necessarily infringement if what has been copied is not a substantial part of the original work.[8]
The Chapniks would likely have established copying. According to the Article, the trim, stonework and the shape of door were similar. Also, the defendants’ contractors allegedly were instructed to copy the architectural work. Finally, there is a causal connection with the original work since the two homes are located only 850 metres apart.[9]
The more difficult aspect of the claim is proving that the defendants reproduced a substantial part of the expression. It is trite law that copyright protects only expression and not ideas. However, when answering the question of whether copying is substantial, the assessor must take a holistic approach having regard to the quality and quantity of what was copied.[10] Excluding unprotectable ideas at the outset prevents this holistic approach.[11]
Upon the facts and photos provided in the Article, it is difficult to come to a firm conclusion on whether a substantial part of the expression was copied. When considering the alleged similarities between the two houses, it seems that some aspects are very common elements of architecture such as the trim colour and stonework. In Rains v Molea, the Court considered whether a painting of a crumpled piece of paper was infringed by a different artist also painting crumpled paper. The court found that although there were many similarities, these were common techniques used by artists and not capable of copyright protection.[12]
Several friends of the Chapniks had allegedly called to inform them of the copycat house. This would have bolstered their claim since when considering substantiality, “the perspective of a lay person in the intended audience for the works at issue is a useful one”.[13] Similarly, even though there are many differences between the houses, differences in the number of rooms and areas may not be enough to prevent judges from concluding that the substance of the architectural work has been copied.[14]
Conclusion
A homeowner asserting copyright in the design of their house as an architectural work will face difficulties due to issues of ownership and substantial reproduction. This appears to be a laudable result since approximately 84% of the Article’s readers believe that copyright should not subsist in the “look of your house”.[15]
William Chalmers is a JD Candidate at Osgoode Hall Law School and was enrolled in Osgoode’s Intellectual Property Law Intensive Program. As part of the program requirements, students were asked to write a blog on a topic of their choice.
[1] Vjosa Isai, “This Forest Hill couple sued their neighbours for $2.5 million over a house they claim was renovated to look like theirs”, The Toronto Star (October 5, 2017), online: < https://www.thestar.com/news/gta/2017/10/05/forest-hill-homeowners-claim-neighbours-duplicated-their-house-design.html> [Article].
[2] Copyright Act, RSC 1985, c C-42, s 2 [Copyright Act].
[3] Copyright Act, supra note 1, s 13(1).
[4] David Vaver, Intellectual Property Law: Copyright, Patents, Trade-marks (Toronto: Irwin Law Inc., 2011) at 138.
[5] Hay v Sloan (1957), 12 DLR (2d) 397 at para 7.
[6] Chancellor Management Inc. v Oasis Homes Ltd, 2002 ABQB 500 at para 65.
[7] Copyright Act, supra note 1, s 3(1).
[8] Ladbroke (Football), Ltd. v William Hill (Football), Ltd., [1964] 1 All ER 465 at 481, per Lord Pearce (HL).
[9] Gondos v Hardy (1982), 38 OR (2d) 555 at para 33 (ONSC).
[10] Cinar Corporation v Robinson, 2013 SCC 73 at para 26 [Cinar].
[11] Cinar, supra note 10 at para 36.
[12] Rains v Molea, 2013 ONSC 5016 at para 30.
[13] Cinar, supra note 10 at para 50.
[14] Kaffka v Mountain Side Developments Ltd. (1982), 62 CPR (2d) 157 at para 15 (BCSC).
[15] Article, supra note 1.
