McDonald Jones Homes Pty Ltd v Potter [2025] FedCFamC2G 841 (4 June 2025)

Here’s one for the volume builders who get a bit trigger-happy with copyright claims. If you’re itching to swing the copyright bat over house plans, you might want to reevaluate your evidence. The Federal Circuit and Family Court’s recent decision in McDonald Jones Homes Pty Ltd v Potter is a firm reminder that just because two house plans look alike, it doesn’t mean you’ve caught a copycat.

Courts aren’t in the business of handing out monopolies over everyday house layouts, and over-asserting your rights can leave you footing the bill for someone else’s legal fees. That’s a costly way to learn the limits of copyright!

What happened?

McDonald Jones Homes (MJH), a big player in the project home market, asserted that its designs (the “Beach House Upgrade” and its cousin the “Beach House Executive”) had been pinched. The story, as MJH told it, was that a homeowner, Robert Potter, handed a Frankenstein-esque floor plan of the two Beach House plans, allegedly cobbled together from MJH’s own brochures, to his draftsperson. That draftsperson then drew up a new set of plans which became the “Chisholm House.” MJH thought the resemblance was far too close to be coincidence. Off to court, they went.

MJH and the judge (Manousaridis J) saw eye to eye on some things, but the evidence was a far cry from an open-and-shut case. There were two versions of the alleged plan, conflicting stories about who brought what to the table, and a lot of finger-pointing about who actually did the copying. The draftsperson gave inconsistent accounts, and although MJH’s lawyers tried to fill in the gaps with inferences and assumptions, the judge didn’t think it was enough: “The fact that a witness is disbelieved does not prove the opposite of what he asserted.”

How did Potter win?

So, what did the court find?

• Copyright? Sure, but …: The court agreed that MJH’s plans were protected by copyright, and that Potter’s plan looked suspiciously like a mashup of MJH’s designs. Unfortunately for MJH, that’s where the good news ended. Copyright doesn’t give a stranglehold on the market, and others are free to use similar ideas or layouts so long as the actual plan hasn’t been copied.
• The evidence was not a smoking gun: The court was not satisfied that Potter actually created or handed over the offending plan, or that he told anyone to copy it. The draftsperson’s evidence was inconsistent, the metadata was inconclusive, and the court wasn’t willing to bridge the gap with assumptions.
• No authorisation, no infringement: Even though the Chisholm House plans were, in the court’s words, “substantial reproductions” of MJH’s plans, that wasn’t enough. Without proof that Potter directly instructed the reproduction, the copyright claim collapsed. MJH, as the rights holder, had the burden of proof.

While MJH’s plans scraped over the originality line and got copyright protection, the court made it clear that copyright doesn’t fence off the general concept or style. Builders are free to take inspiration from industry trends and common features. What’s protected is the unique way those ideas are drawn, not the ideas themselves.

Take-home points

The copyright saga isn’t over yet, as an appeal is now before the Federal Court of Australia. Regardless of what happens next, here are a few take home points for rights-holders, builders and their lawyers.

• Similarity isn’t enough: Just because two houses look alike doesn’t mean there’s been copying. You need a clear, credible chain of evidence showing who did what, when and how.
• Originality matters: While even modestly inventive plans can attract copyright, protection is thin for designs that don’t go beyond the ordinary. Others are allowed to build on your concepts.
• The burden of proof sits with the rights holder: Authorisation can’t be assumed. You can’t expect the court to fill in the blanks for you, so be prepared to show concrete proof that copying has occurred.

A final word to the overzealous

Copyright is there to protect genuine creative work, not to fence off the everyday. Swing copyright too freely, and you might be the one left with the legal headache.

Assertive IP enforcement has its place, but overzealous claims in the residential construction space can do more harm than good. When in doubt, get tailored legal advice and consider a commercial resolution before issuing court proceedings.

This article has been co-authored by Georgina O’Farrell and Nazli Sevinc