CATCHWORDS COPYRIGHT - Alleged infringement of architectural plans - display home - original artistic work - in whom the copyright vested - extent of copying - qualitative assessment of extent of similarity - alleged reproduction of substantial part of plans - copying of ideas. Copyright Act 1968 (Cth) ss.36(1) OWNIT HOMES PTY. LTD. First Appellant DAUDI PTY. LTD. Second Appellant JEFFDET OSMAN Third Appellant - and - D. & F. MANCUSO INVESTMENTS PTY. LTD. First Respondent DOMENICO MANCUSO Second Respondent TONY MANCUSO and ANGELA MANCUSO Third Respondents Coram: Fisher, Pincus & Einfeld Ju. Brisbane 29th April 1988 FEDERAL COUPT OF AUSTRALIA PAING Fay \ REG STAY 7 aN IN THE FEDERAL COURT OF AUSTRALIA ) ) QUEENSLAND DISTRICT REGISTRY ) No.G165 of 1987 ) GENERAL DIVISION ) ON APPEAL FROM THE SUPREME COURT OF QUEENSLAND BETWEEN: OWNIT HOMES PTY. LTD. First Appellant - and - DAUDI PTY. LTD. Second Appellant - and - JEFFDET OSMAN Third Appellant - and — D.& F. MANCUSO INVESTMENTS PTY. LTD. First Respondent - and - DOMENICO MANCUSO Second Respondent - and - TONY MANCUSO and ANGELA MANCUSO Third Respondents MINUTES OF ORDER JUDGES MAKING ORDER WHERE MADE DATE OF ORDER THE COURT ORDERS THAT: FISHER, PINCUS & EINFELD JJ. BRISBANE 29 APRIL 1988 oo oe oe 1. The appeal be dismissed. 2. The appellants do pay to the respondents their costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. we IN THE FEDERAL COURT OF AUSTRALIA ) ) QUEENSLAND DISTRICT REGISTRY ) No.G165 of 1987 ) GENERAL DIVISION ) ON APPEAL FROM THE SUPREME COURT OF QUEENSLAND BETWEEN: OWNIT HOMES PTY. LTD. First Appellant - and - DAUDI PTY. LTD. Second Appellant - and - JEFFDET OSMAN Third Appellant - and - D.& F. MANCUSO INVESTMENTS PTY. LTD. First Respondent - and - DOMENICO MANCUSO Second Respondent - and - TONY MANCUSO and ANGELA MANCUSO Third Respondents REASONS FOR JUDGMENT CORAM: Fisher, Pincus & Einfeld JJ. 29th April 1988 THE COURT: This appeal is brought to this Court from a decision in the Supreme Court of Queensland of 6 August 1987, and is brought pursuant to s.131B of the Copyright Act 1968 ("the Act"). The first and second appellants ("Ownit" and "Daudi") at the 2. relevant times were respectively a "designer and builder of dwelling-houses" but more particularly a builder of project homes, and a "designer of dwelling—-houses". The third appellant ("Mr. Osman") is a draftsman, formerly self-employed as a designer of dwelling-houses, but upon the incorporation of Daudi on 3 June 1981 he became the managing director thereof. The respondents are respectively a construction company ("Mancuso Investments") one of the directors thereof and the father of the male third respondent and the owners of land upon which a_ house was constructed for them by Mancuso Investments ("Mr & Mrs Mancuso"), The circumstances in which this appeal arises can be shortly stated. Up to 1983 Mr. Osman had produced for Ownit drawings and designs of dwelling houses, either on his own account, or as_ the servant or employee of Daudi. Late in 1983 Mr. Osman produced plans for a house entitled "Envoy Series 2", being a smaller version of a previous series of designs known as the "Diplomat", and a variation on the "Envoy" and "Envoy Series 1" designs. In 1984 Ownit constructed a display home to the plans of the Envoy Series 2. The learned trial judge, Kelly SPJ, found, first, that the Envoy Series 2 plans were an "original artistic work" within the meaning of the Act and, secondly, that Ownit and Daudi were jointly and severally the owners of the copyright in the plans of the Envoy Series 2 of which Mr. Osman was the author. Upon. the 3. hearing of the appeal the respondents, by notice of contention challenged these findings. Mr & Mrs Mancuso were in 1985 intending to build a house upon land which they had purchased, and to this end they inspected various project or display homes including the Envoy Series 2 display home constructed at the Carindale Display Village. There was evidence that Mr & Mrs Mancuso retained 2 brochures containing details of the house from their inspection. Subsequently, Mr & Mrs Mancuso engaged a Mr. Caruso, a draftsman, with a view to designing for them a house incorporating at least the prominent features of the Envoy Series 2. The trial judge found that Mr & Mrs Mancuso showed Mr. Caruso one or both of the brochures they had retained from their inspection of the Ownit display homes. Mr. Caruso in turn retained one of the brochures he was shown. Mr. Caruso, in discussing the design of their prospective home with Mr & Mrs Mancuso made it clear to them, however, that a direct copying of the plans of another house would infringe the copyright in those plans. Mr. Caruso then produced drawings showing a design incorporating some of the basic concepts of the design of the Envoy Series 2. These drawings were subsequently shown to Mr & Mrs Mancuso, who instructed Mr Caruso to make several changes to bring the design closer to the design of the Envoy Series 2. These changes were duly included by Mr. Caruso, who then produced a set of working drawings. It was from these drawings that a 4. house was erected by Mancuso Investments under the building licence of the second respondent between September 1985 and March 1986. The trial judge found that the copyright in the plans of the Envoy Series 2 had not been infringed by Mr & Mrs Mancuso in that there had not been a reproduction of the Ownit plans or a substantial part thereof. No argument was advanced at trial on 8.71 of the Act; instead the judge addressed himself only to an infringement in the ordinary course, pursuant to s.36(1) of the Act, of the copyright in the Ownit plans by either the Mancuso plans or the house subsequently constructed therefrom. The appellants have appealed on 3 grounds as set out in their notice of appeal as follows: "GROUNDS: 2. That the learned trial judge erred in finding that the working drawings forming part of exhibit '5' in the Writ Action and/or the Third Respondent's house constructed in accordance with those drawings did not infringe the copyrights subsisting in the Envoy Series 2 drawings, or drawings for the Envoy series of houses. 3. That the learned trial judge erred in finding that the drawings forming part of Exhibit ''5' in the Writ Action and/or the Third Respondents said house did not reproduce a substantial part of the drawings for the Envoy Series 2 house, or drawings for the Envoy Series of houses. 4. That the learned trial judge erred in failing to give any or sufficient weight to the fact that the working drawings forming part of Exhibits '5' in the Writ Action were copies from the drawings for the Envoy Series 2 house when assessing whether the drawings forming part of Exhibit '5' in the Writ Action and/or the Third Respondents said house were sufficiently similar to the Envoy Series 2 drawings to constitute infringements of the copyright in the Envoy Series 2 drawings." 5. The respondents, as already related, filed a notice of contention as follows: "NOTICE TO APPELLANTS OF CONTENTIONS TO BE ARGUED BY RESPONDENTS. 1. The learned trial judge erred in finding that the drawings described as the ''Envoy Series 2' were an artistic work in which separate copyright subsisted. 2. The learned trial judge erred in finding that the First Plaintiff and Second Plaintiff (first and second appellants here) were owners of the copyright in the Envoy Series 2 drawings at any time prior to 7th May 1987." The first question is whether copyright subsists in the plans of the appellant and in whom that copyright if any, is vested. The brochures which were taken by Mr & Mrs Mancuso and one of which was thereafter retained by Mr Caruso, were described thus by the trial judge at pages 2-3 of his reasons: "One of these documents (exhibit 13) was a single sheet which on one side showed a plan of the house but without any dimensions and on the other side a perspective drawing of the house. The other document (exhibit 24) was a page from a brochure which showed a number of the homes in the Carindale Display Village including the Envoy Series 2. This page showed on one side the plan of the house, also without any dimensions, and on the other side a photograph of the house." The plans, sketch and photograph contained in these documents were the only plans of the Envoy Series 2 to which Mr & Mrs Mancuso had access. It is in these, therefore, and perhaps in the Envoy Series 2 house itself as constructed and inspected by Mr & Mrs Mancuso, that for the purposes of the appeal there must be found to be copyright. 6. The plans, the sketch and the photograph in the two brochures (hereinafter together called "the plans") show a two storey house with a lounge, dining room, family room, kitchen, laundry and garage within the ground floor, and either 3 or 4 bedrooms, the fourth being optional, and bathroom and toilet on the first floor. The plan to exhibit 13 also shows an optional rumpus room adjoining the ground floor. Most distinctive about the house is, however, the way in which it is roofed. From the sketch in exhibit 13 and the photograph in exhibit 24, it can be seen that the roof from the front of the house is in 4 sections, all in different planes, but pitched at the same angle. Two of these roof sections are rectangular in shape. The other two are "L" shaped, with the shorter stroke of the "L" in each case set adjacent to the other. They do not adjoin, as one section is set higher from the ground than the other. The resulting roofline, created particularly by these two "L" shaped sections, counsel for the appellants described as a "broken 2". Whether or not this term is one of science or merely a somewhat inappropriate description of the roofline depicted was not made clear, nor were its origins disclosed. In any event, the house is in our opinion distinctively roofed by an arrangement of 4 planes of roofing. Generally, however, the house as depicted in the plans and elevations, sketched and photographic, has no very innovative or exceptional features. The rooms are all rectangular and are set out in a configuration similar to many houses of its type. It was conceded by the appellants that no great originality, in the common sense of the word, is displayed in the design of the house. Neither was there 7. any originality, in the same sense, in the designs from which the Envoy Series 2 has been derived, as described supra. The subsistence of copyright in architectural plans as a general proposition is clear. Copyright may subsist, under s.32 of the Act, in an "original literary, dramatic, musical or artistic work" and the definition of "artistic work" is such as to make clear that "artistic quality" is unnecessary. In contrast, under the 1911 Act, although specific protection was given to an "architectural work of art", that was so defined as to require "artistic character or design". On the face of it, that change in wording appears to make it easier to establish copyright in respect of buildings or plans of buildings. Although the work must be "original" and the requirement of "originality" has been the subject of substantial consideration by the courts, no conclusive authority appears to have been pronounced. In Ladbroke (Football) Ltd v William Hill (Football) Ltd (1964) 1 WLR 273 Lord Hodson at p.285 said that: ",.. common place matter put together or arranged without the exercise of more than negligible work, labour and skill in making the selection (or house design) will not be entitled to copyright. 'Whether enough work, labour & skill is involved, and what its value is, must always be a question of degree'. Cramp & Sons Ltd v Frank Smythson Ltd. [1944] 2 All E.R. at p-97, per Lord Parkert Lord Pearce at p.291 said, "The word "original" does not demand original or inventive thought, but only that the work should not be copied and should originate from the author." 8. It should be noted, however, that works which might seem to have fulfilled Lord Pearce's minimal requirements had not always been held to be "original": see for example G.A. Cramp & Sons Ltd. v Frank Smythson Ltd. (1944) A.C. 329. In the New Zealand case of Beazley Homes Ltd v Arrowsmith [1978] 1 N.Z.L.R 394 McMullin J. in considering whether plans of low-cost houses, showing little or no architectural innovation, were indeed "original" for the purposes of the Copyright Act 1962 (N.Z.) said at pp.402-403. "I do not think that the similarity, which on account of the considerations I have just mentioned (the various restrictions upon a designer of low-cost housing), the plaintiff's plans bear to other plans of a common' type precludes the claim of originality being made for them... Indeed it seems that there may be some force in the plaintiff's claim that because the range for skill and design are limited, the need for their exercise is greater. The architect and plan drawer are not deprived of all opportunity for exercising their skill and judgment." The "skill and judgment" of Mr. Osman in this case is in our opinion clearly sufficient to characterize his work as "original" within the meaning of the Act. That the constituent parts of the house design are not novel does not preclude this conclusion. Lord Pearce in Ladbroke said at p.291: "In deciding therefore whether a work in the nature of a compilation is original, it is wrong to start by considering individual parts of it apart from the whole ... For many compilations have nothing original in their parts, yet the sum total of the compilation may be original." Furthermore, the "original" character of the Envoy Series 2 plans is not compromised by the evolution thereof from the 9. previous designs of the author. We adopt the words of Street J. in Ancher Mortlock Murray & Woolley Pty. Ltd v Hooker Homes Pty. Ltd. {1971] 2 N.S.W.L.R. 278 at p.281 in considering a house design of similar origins: "The development of these original designs in a_ series referable to each type of house does not present any difficulties to the plaintiffs. It would be absurd if the author of a work were precluded from reviewing and improving that work as often and to such great or little extent as he may deem necessary lest, by such review and improvement, he should forfeit the protection of the copyright law." Whitford J. in L.B. (Plastics) Ltd v Swish Products Ltd [1979] RPC 551 at p.569 made similar remarks. The "original" character which would otherwise subsist in Envoy Series 2 is not therefore precluded from so subsisting nor is it "forfeited" by reason of its genesis as an adaption of previous original designs. (See also Ogden Industries Pty. Ltd. and Ors Kis (Australia) Pty. Ltd. [1982] 2 N.S.W.L.R. 28; Warwick Film Productions Ltd. v Eisinger [1967] 3 W.L.R. 1599; University of London Press Ltd. v University Tutorial Press Ltd. [1916] 2 Ch.601). We turn secondly to consider the question in whom is vested the copyright subsisting in the plans in the brochures. Mr Osman was the author in 1983 of plans, elevations and sketches of Envoy Series 2. Daudi, however, had been incorporated in 1981 and had employed Mr Osman since its incorporation. The respondents submitted that there was no evidence that Mr. Osman was employed under a contract of service at relevant times. On the other hand, he said in evidence that he considered himself to have been an employee of Daudi since 10. 1981. Although flimsy, that evidence was in our view enough to raise a prima facie case of a contract of service. By virtue, therefore, of 8s.35(6) of the Act the owner of the copyright, given nothing more, was Daudi. Daudi, however, on 4 September 1985 entered into a deed assigning "the copyright in the drawings and all right, title and interest therein whatsoever" to itself and Ownit jointly and severally. By a further deed of 7 May 1987, recital K of which reads "Doubts have arisen as to whether Osman or Daudi and Ownit are the legal owners of such copyright;", Mr Osman purported to assign to Daudi and Ownit any copyright he had in the drawings he had produced whilst in Daudi's employ. The evidence is not very clear as to when the alleged infringements occurred, but as' the construction of the house did not commence until September 1985, any infringement constituted by the construction took place at a time when Daudi and Ownit were both interested in the copyright. At the time of the drawings, however, only Daudi had an interest. It thus appears that Daudi and Ownit were properly joined as plaintiffs as owners of the copyright but that Mr. Osman had no cause of action. At the same time, it should be added that the deed of 7 May 1987 does not appear to have had any effect, as it was entered into well after the alleged infringements occurred. The issue however on which the appellants have appealed is the question of the infringement of the copyright. The trial judge in considering whether there was a breach, adopted 11. the passage in Copinger & Skone James on Copyright, 10th ed. at para 408: "... there is no infringement unless it is established that the defendant has produced a work which both closely resembles the plaintiff's and has been produced by a direct or indirect use of those features of the plaintiff's in which copyright subsists." His Honour appears to have found, without expressly stating his finding, that the respondent had copied, or "produced by a direct or indirect use of" the plans of the appellants. His Honour found against the appellants, however, on the question whether the respondents had made a "substantial reproduction" of the plans. In doing so he considered both sets of plans and the houses themselves, and their basic similarities and dissimilarities. Counsel for the appellants advanced two lines of argument with respect to infringement of copyright. First, it was argued the trial judge did not attach any or any sufficient weight to the finding that the respondents had copied the plans of the appellants at the time when he considered whether or not there had been a reproduction or a_ substantial reproduction. This line of argument appears to be rooted in the "rough Practical test" advanced by Petersen J. in University of London Press Ltd. v University Tutorial Press Ltd [1916] 2 Ch. 601 at p.610 "... that what is worth copying is prima facie worth protecting" - a test in which Lord Reid in Ladbroke saw "much wisdom" (at p.279). However, as Sir Owen Dixon remarked, "stealing from one author is plagiarism; stealing from three authors is research" (The Dictionary of Australian Quotations, 12. Heinemann 1984). The appellants submitted that there was here such strong evidence of copying by the respondents, as to support an inference or conclusion that there has been a copying in accordance with one limb of the test as stated in Copinger & Skone James. The argument then ran that such an inference or conclusion will go to emphasise the significance of any evidence of similarity between the "copy" and that which has been "copied". Had the trial judge, the argument continued, followed this line of reasoning, he would have given added weight to the similarities between the two sets of plans and respective houses, and attached lesser weight to any dissimilarities between them. In support of this contention, counsel relied upon the dicta of Wilson J. in S.W. Hart & Co. Pty Ltd v. Edwards Hot Water Systems (1985) 159 C.L.R. 466 at p.484 as follows : "The question remains whether the trial judge's finding of reproduction 1s to be sustained. As I have shown, the trial judge dealt separately with the two factors which are involved in reproduction, namely similarity and copying. Although his findings on each of those factors, separately considered, may be sustained, I believe that to consider them in that fashion in the circumstances of this case is to introduce an artificiality into the process which overlooks the interdependence that naturally characterises the two factors. There may be cases where this is not so. If a case is to succeed where there is no evidence of access to the copyright drawings, the similarity of the impugned product to the drawings will be required to be so strong as_ to itself sustain, without more, an inference of copying. On the other hands in a case _ where there is st rong evidence in support of an Inference of cop vend such evi ence as there is similarity ma on added si nificance: must, of seats SEIT amount to ae eficient 13. similarity of a substantial part of the copyright work. But such dissimilarities as are apparent may be seen as no more than a deliberate attempt to obscure what has actually taken place, namely, the appropriation of another person's labour. In Ancher, Mortlock, Murra & Woolley Pt Ltd v. Hooker Homes Pt Ltd fISTT] 2 = N.S.W.L-R. 278 Street J. (as he then was) noted the fine line that may exist between the conduct of an architect who, having inspected an original plan or house, then proceeds to embody the architectural concept in an original plan prepared by him and that of an architect who merely proceeds by way of copying what he has seen. His Honour observed [1971] 2 N.S.W.L.R., at p.284 that it may be that _ onl after making a finding of copying, that is to say, of unfair or wunconscientious use of the author's Tan or building, that significance will attach to the degree of similarity. In finding an infringement in the case before him, his Honour acknowledged that his assessment had been coloured by the unmeritorious use made by the defendant of the plaintift's plans and houses [1971] 2 N.S.W.L.R., at pp. 288, 289." We have added the emphasis in all citations in these reasons. In the last sentence of this passage Wilson J. was referring to a particular paragraph in Street J.''s reasons on p.289 of the report of his reasons. Street J. said in that paragraph when dealing with the question of resemblance "In evaluating the whole of the material that has been canvassed during this hearing in order to form an opinion upon which to found the answer to this question, m assessment is coloured b the unmeritorious use made by the defendant of the aintiffs' ans an ouses. If the defendant's architect had drawn the plans that are here challenged as infringements after a mere inspection and examination of the plaintiffs' plans and houses, the present case would fall within what I have earlier described as the grey band. The similarities and the dissimilarities, weighed together and weighed separately, might well have led me to the conclusion, particularly in the split level house, that no infringement had occurred. The defendant might well have been credited with having engaged in a bona fide application of the concept and ideas of Mr. Woolley, and not in an unfair copying of his 14. expression of concept and ideas. But I have already, for reasons stated, inferred that the defendant did engage in unfair copying of the plaintiffs' plans and_ houses. This adds significance to the similarities that do exist and diminishes significance from the dissimilarities." Gibbs C.J. made a like reference on p.474 of his reasons in S.W. Hart: "On the contrary, in the light of the fact that the respondent actua copie the appellant's drawings, obviously for the purpose OF appropriating the benefit of the appellant's labour, and having regard not merely to the volume, but to the significance, of the Similarities between the respondent's products and the drawings, I consider that Brinsden J. and _ the Majority of the Federal Court were right in concluding that the respondent did reproduce a substantial part of the appellant's drawings." It is in the light of the dicta of these three judges that the appellant contends that the trial judge erred in not attaching significance, when assessing resemblance, to a finding of deliberate copying. If this approach had been adopted, it was said, a finding of substantial reproduction would inevitably have been made. It is our view that such a conclusion does not necessarily follow and that the appeal should not be upheld on this ground. In neither of those two cases was 1t said that such an approach must be followed as a matter of law. In each of the cases there was no direct evidence of access, or of copying, and each finding of copying was made by way of inference. Similarly the various findings of deliberate copying, of copying "for the purpose of appropriating the benefit of the appellant's labour", of "unmeritorious use", and of 15. "unfair copying" were substantially based on facts inferred. To the extent that there was no explanation proffered by the defendants, such findings of moral turpitude may well have been justified and had some relevance in the circumstances of each matter. It could hardly determine conclusively the question of copying or have much, if any, impact on the finding of resemblance. In particular, in Ancher Mortlock neither the employed architect of the defendant, nor any of its employed architectural draftsmen, its marketing manager and its employees who had engaged in gathering data about the plaintiff's housing was called. It was thus perfectly understandable that Street J.'s assessment of resemblance was coloured by what he assessed as the ""unmeritorious use" made of the plaintiff's plans and houses. There was also no evidence before Street J. which would support a finding that there had been merely a "bona fide application of the concept and ideas" of the plaintiff's architect rather than an "unfair copying of his expression of his concept and ideas". In the present matter, there was direct evidence before the trial judge on the two topics of access and copying. As earlier mentioned the person who was found to have drawn the offending plans gave evidence, having been called by the appellants, of what in fact happened. Purthermore, the respondents gave direct evidence of what in fact had occurred. It was open to the trial judge to make such use of this evidence as he wished, to support, if he considered it appropriate, his finding of resemblance. He cited in his reasons, and relied upon, the judgment of Street J. im Ancher Mortlock and that of 16. Gibbs C.J. in S.W. Hart and would certainly have been aware of the use which they made of their findings on copying to support their positive findings of resemblance. Equally, of course, it is open to use the degree of similarity to assist in reaching a subjective conclusion on whether there has been a copying of the plaintiff's work (see per Upjohn L.J. in Francis Day & Hunter Ltd v. Bron [1963] 1 Ch. 587 at p.618). It is pertinent also to note that in those passages Upjohn L.J. commenced by emphasizing the separate nature of the two stages. He said : "This (an infringement) is really a question of fact and nothing else, which depends upon the circumstances of each case, but it is a question of fact which must be taken in two stages. The first stage is objective, and the second stage is subjective. The first question is whether the alleged infringing work ... is similar to the work of the original author." Likewise at p.623 Diplock L.J. (as he then was) referred to those two stages as "two elements" and states the first element as the necessity for "sufficient objective similarity between the infringing work and the copyright work or a substantial part thereof ...". In the circumstances of this matter, the trial judge made no express finding on the question of copying, though there was positive evidence on the basis of which it was open to him to do so if he considered it appropriate. It would appear either that he assumed such a finding and proceeded to deal with resemblance or alternatively deliberately chose to deal with the two questions in the sequence stated by Upjohn L.J. and Diplock 17. L.J. in Francis Day. There was evidence, however, on the basis of which he might well have refrained from passing judgments as harsh on the conduct of Mr Caruso and the Mancusos as those of Gibbs C.J. and Wilson J. in S.W. Hart and Street J. in Ancher Mortlock. The circumstances, at least from the point of view of the draftsman, were very different. Mr Caruso gave evidence that Mr and Mrs Mancuso came to him with at least one brochure and requested him to "basically design a home similar to that". Sketches were duly prepared by Mr Caruso following some reference to the brochure, but there is evidence that these sketches depicted a house quite different to that in the brochure. Mr Mancuso picked up these sketches from Mr Caruso's office and took them home to discuss them with his wife. Approximately a week later Mr Mancuso spoke again with Mr Caruso to discuss the design. Mr Caruso's evidence was that Mr Mancuso wanted the design "more towards that original idea", i.e. the design depicted in the brochure. Included among the changes requested by Mr Mancuso were the reintroduction of a "broken 2" roof-line, and the removal of a bay window. Mr Caruso's evidence was that in this second discussion no reference was made to the brochure although it remained in his possession, but rather that Mr Mancuso and he were dealing with and discussed only the sketch plans he had prepared. In our opinion, this case falls squarely into the "grey band" of Street J. and it was clearly open to the trial judge to find that the causal link between the two works has been established. Equally, if he had given specific consideration to the topic, he might have accepted that there was a "bona fide application of the concept and ideas" 18. rather than an unfair copying of the expression of the concept and ideas. In this matter, the trial judge made no express finding, as already stated, on the question of copying or a _ causal connection between the work of Mr. Caruso and that of the appellants. Doubtless he refrained from doing so because on this issue there was no conflict between the direct evidence of Mr Caruso and that of the appellants. The trial judge considered, in the first instance, the issue of substantial resemblance and, having resolved this element in favour of the respondents, it was unnecessary for him to make an express finding on the issue of copying. We are not prepared to accept the submission that the trial judge erred in this regard. There was no positive obligation on him, as a matter of law, to adopt the approach propounded by the appellants. This is because neither of the judges of the High Court did more than cite the element of copying as supporting their predetermined view on resemblance. Street J. agreed that he allowed what he saw as the unmeritorious copying to colour his approach to resemblance. This his Honour was perfectly entitled todo, as he had before him "a jury question", but there was no authority which obliged himas a matter of law to adopt this approach. Turning to the issue of resemblance, or Similarity, there is no doubt that it is a matter for objective determination by the trial judge. Upjohn L.J. in Francis Day at p.618 said of "resemblance" or "similarity": 19. "This is purely an objective question of fact and depends in large degree upon the aural perception of the judge, but also upon the expert evidence tendered to him; but it is essentially a jury question." In Ancher Mortlock at p.286 Street J. said : "The decision upon the issue of similarity is an original decision for the court itself. It is to be reached upon an assessment of such similarities and dissimilarities as appear to the court between the plans and buildings under consideration ... But the important point is that, in distinction from the judicial process in relation to expert evidence such as normally encountered in litigation, a court in the present type of litigation is entitled, and, indeed, bound, to form and act on its own original opinion." Counsel for the appellants attacked the reasoning of the trial judge on the ground that, in setting out in his reasons a list of the similarities as well as the dissimilarities, he considered the question on a quantitative rather than a qualitative basis. This argument was based on the listing by the trial judge of four similarities and five dissimilarities. It followed, it was contended, that his conclusion that there was not substantial resemblance was made on a quantitative assessment, contrary to the view expressed by Lord Reid in Ladbroke at p.277. It is apparent from the judgment of Gibbs C.J. in S.W. Hart that the same criticism was levelled at the reasoning of the trial judge in that matter. However the former Chief Justice found that since the correct principle had been recognised and there was no other factor which would point to the trial judge having misapplied that principle, the argument should fail. In this matter, the trial judge equally identified the correct 20. principle. Although he listed the similarities and Gisimilarities it is clear that he decided the issue of similarity on a qualitative basis rather than a quantitative basis. We are further confirmed in our view that the trial judge's findings on the question of similarity ought not to be disturbed by another consideration. The evidence as to similarity here is such that either of the two following conclusions may be safely reached. They are either that enough has been shown by Mr Mancuso and Mr Caruso to support a finding that the alleged infringing work is not similar to the whole or a substantial part of the copyright work, or, alternatively, that all that was "copied" from the copyright work was the style of or "idea" behind the work. With respect to the first alternative, we rely primarily upon the findings of the trial judge, with whom we agree. on the second alternative we place considerable reliance upon' the "broken 2" roofline, held out by the appellants as a matter of a distinctive nature in the copyright design. The design of the house of Mr. & Mrs. Mancuso did not incorporate this "broken 2" roofline, but rather had only one L-shaped roof section, the shorter stroke of which is over the stairwell of the house. The substantial part of the design of the appellants is thereby not, in our opinion, reproduced with the requisite similarity. The trial judge was in our view correct in finding that the alleged infringing work adopted no more than the concept and idea behind 21. the copyright work. Such an adoption does not amount to a breach of copyright. It should be added that, where as here the copyright material is of a relatively simple rather commonplace kind, the task of establishing infringement is inherently more difficult. As Mr. Ricketson in his work "The Law of Intellectual Property" says at p.170: "If the part taken represents the application of a high degree of skill and labour on the part of the author, it may be regarded as substantial although comparatively slight in quantitative terms." As an example of the application of that principle, in addition to the cases cited by the author, see Kenrick and Co. v Lawrence and Co. (1890) 25 Q.B.D. 99 at p.102. The appeal must be dismissed with costs. I certify that this and the 2Q preceding pages are a true copy of the Reasons for Judgment of The Court. ROE Associate Dated: ag/+/%. Counsel for the Appellants: Mr. G.L. Davies 9.C. with Mr. P.D. McMurdo Solicitors: Hopgood & Ganim Counsel for the Respondents: Mr. S.S.W. Couper Solicitors: John C. Walker & Noble Hearing Date: 23 November 1987