Scenario: They seemed like such a nice couple when they came in to Charlie’s office. They said that they wanted to build a new house, and liked the lot he owned in the Oak Park community. Charlie told them a little about how he builds custom homes in highly select communities. He told them about the company’s design/build capability to create a plan based on their particular needs.
“That’s why we came to you,” the husband told him. “We actually found a house we liked, but weren’t crazy about the location. We want you to build the same house, but here in Oak Park.” The husband pulled out a sheet of paper with a floor plan and elevation on it, and handed it to him. Charlie noticed it had the logo of a rival builder printed right on it. And to make it even worse, the builder had printed on the plan the words “Copyright 2006, Rival Homes.”
“I’m sorry,” Charlie said. “I can’t do that. I don’t have the rights to that house plan.”
“That’s no problem,” the husband told him. “We want to make some changes in the plan anyway. We want to make the family room larger, and add an additional bedroom above the garage.”
What should Charlie do? Can he make enough changes to the plan that the house would no longer be covered under the copyright?
Solution: The short answer is no, he can’t. No matter what changes Charlie makes, even moving some rooms around and changing the sizes, the new plan would be a derivative work of the existing plan, and all derivative works are covered under the same copyright. If Charlie were to copy the plan and the copyright owner were to find out, Charlie could potentially be liable for all the profits he made in building that house.
This doesn’t mean that every house has to look totally unlike any other house. For example, if two courtyard homes have a similar layout but were designed independently, there would be no copyright infringement. But it’s usually not that difficult to identify a derivative work.
If the prospective buyers had brought in a sheet from a plan book or magazine, the dilemma would be much simpler. Charlie could simply contact the plan service and purchase the rights to build the house. Since they sell the same plans to many different buyers, the cost is generally less than creating a plan from scratch. Or if the buyer had brought in five or six plans, and discussed what they liked and disliked about each of the plans, Charlie might have been able to independently design a house that satisfied their needs, without deriving the plan from any of them.
Stealing plans is a serious problem in the building industry. Many builders and homeowners have paid significant fees to create a unique design suited to their particular needs. While some people may feel that imitation is the sincerest form of flattery, the homeowners who paid for those plans may consider it another form of larceny. A professional and creative builder should never engage in such behavior, or tolerate it from other builders.
One builder I know had a unique solution to this problem. A customer approached him with a house plan he liked from a different builder. He knew his competitor well and had a good working relationship with him. So he contacted the competitor and asked if it would be possible to buy the rights to build this particular house. Not only were they willing to sell him the plans, they had panelized this particular house and also sold him the panels. The competitor made money, the builder made money, and the customers got the house they wanted in the location they desired. Not a bad solution.
Al Trellis, a co-founder of Home Builders Network, has more than 25 years of experience as a custom builder, speaker, and consultant. He can be reached at altrellis@hbnnet.com.
