Any custom builder who has spent years earning a solid reputation for building houses that have become his company’s “brand” understands how valuable those plans are to his livelihood. They’re a marketable commodity that sometimes needs to be defended. That was the position John Baker found himself in several years ago, much to his surprise.
Baker is the owner and principal of Baker Brothers Custom Homes, a design/build company he started nearly 15 years ago after running a successful masonry business for many years. Baker Brothers had become one of the approved designers and builders in an exclusive, gated golf course community. Any company seeking to design or construct homes in Forest Meadows had to undergo an arduous evaluation and approval process by its design review board. The covenants, codes, and restrictions were cumbersome, detailed, and specific.
Baker had invested considerable time and effort earning his credentials in the community and was one of a handful of approved builders that had a successful record within the subdivision. He had designed and built numerous homes in the community, and his experience had taught him to always have a spec home under construction. A spec brought in both design contracts and construction work.
One day a local real estate agent asked Baker to meet a potential buyer for one of his spec homes, Lot 258. The home was 90 percent completed, needing only a few finish details such as carpeting, door hardware, and some light fixtures. At the meeting, the potential buyers appeared to love everything about the home—its location, design, size, colors, and detailing. They besieged John with questions about subcontractors, suppliers, and costs. Could you substitute this for that and save money, they asked. They wanted to know if they could make specific changes and how much each would cost. “If we were going to buy another lot and have you build the same home, what would that cost?” Baker answered their questions and explained that each home in Forest Meadows was unique. He could not rebuild this exact house, but he could design and build one with similar features and detailing, he told them.
After meeting for several hours that afternoon, everyone smiled, shook hands, and exchanged departing pleasantries. John was sure he had sold the house. No words were spoken to that effect, but the real estate agent had given him that affirmation through eye contact accompanied with a telltale, coy smile.
Several days passed. Then a week went by. No word. No contact. No offer. Baker called the agent. “I don’t know what happened to them. They told me they wanted the house and that they would be in touch,” she said. John and the agent were puzzled, but they had been through similar circumstances before.
More time passed. Baker received an inquiry for a design/ build custom project in a different subdivision in another part of the county. The potential clients agreed to meet him at their new lot and review the design possibilities.
He met the clients on their property and all went well. They agreed to sign a design contract. As he hopped into his truck, Baker decided to take a driving tour of the subdivision to check out the other homes and get a feel for design styles and amenities. “Whoaaa there, Wilbur!” he suddenly roared.
One of his subcontractors had witnessed the defendants removing plans from the jobsite. Baker was staring at a house that was an exact replica of Lot 258, his spec home in Forest Meadows. The same design, stonework, siding—it even had those new carriage-house style garage doors he had used for the first time at Lot 258.
He rang the doorbell. No answer. He went back to his truck and scribbled a note on one of his business cards and left it in the door. He wrote down the address of the home. Baker’s next stop was the local building department to pull the approved plan set for the house. Baker could not believe his eyes. The plan submittal blueprints were a copy of Lot 258. He scribbled down the architect of record and the homeowners’ names from the permit application—the same couple who had seemed so interested in the house a year earlier.
After Baker’s attorney reviewed the situation, he called the architect and owner to see what they had to say. Neither wanted to talk. Next, the attorney sent registered letters to the owner and architect to request compensation for the design. It went unanswered.
Finally, the attorney filed a copyright infringement lawsuit and a civil complaint. An arrest warrant was issued for the homeowner, and the case went to trial. I’m happy to report the builder won his suit. He received reimbursement for all of his costs, time, expenses, attorney fees, and a copyright infringement compensation in the amount of $55,000. Baker’s right to his intellectual property—his copyright ownership of the plan—was decided overwhelmingly in his favor due to his possession of the original plan copies stamped with dates that predated the defendants’ plans and permit submittal records, and the new home’s nearly exact duplication of the size and floor plans of the original. But most important, one of Baker’s subcontractors had witnessed the defendants removing plans from the jobsite. It was later revealed that those blueprints were photocopied and then returned to the plan tube on site.
Dennis A. Dixon is an author, contractor, and speaker with more than 20 years of experience in the building industry. He can be reached at dixven@aol.com.
