Seven-star dispute
It has been reported that legal action has been threatened by lawyers acting for the Burj Al Arab Hotel in Dubai, the world’s only 7-star hotel, against the developers of the docklands area in Plymouth who are planning to build the Clyde Quay Tower which the Al Arab’s lawyers claim may infringe the Al Arub’s rights.
The two buildings could, in reality be no more different. The Al Arab, famous for its distinctive sail-like structure, comprises 28 double-storey floors with 202 bedroom suites, an overnight stay ranging from £600 to £14,000; Plymouth’s Tower is intended to have 15 storeys, only 6 of which will house a 120 room hotel. The total tower building site will cover approximately 100,000 square feet – the Al Arab’s interior has 22-carat gold leaf covering almost the same area! So the idea that even the most geographically challenged traveller might mistake the two hotels is rather hard to believe.
But location and decor are not the only issue.
It is understood that the Al Arab’s lawyers are claiming that the “concept” of the design of the hotel has been copied, both using a “sail” design. Concepts are not, themselves, protected at law, but it is possible that a claim might be based on copyright infringement.
Under UK law any work of architecture (being a building or a model for a building) is classified as an “artistic work” and therefore benefits from the same copyright protection as a sculpture, photograph or painting. Accordingly, whoever creates the building owns the copyright in it – now while it might actually be the contractor who builds it, in practice the owner of the copyright will be the architect who designed the building or the owner of the building who commissioned the architect in the first place.
The owner of copyright in a building in the UK can prevent anyone in the UK from copying the work or adapting it. But what does “copying” actually mean?
In the case of an architect’s drawings, it would appear only logical (as is the case) that if one firm of architects copied another’s drawings for another building, they would be infringing the copyright; but copyright in an artistic work (which includes a building) can be infringed by making a copy in 3-dimensions of a 2-dimensional work and vice versa, so if anyone uses the plans to create an actual building then they are also infringing the copyright in the plans and taking the converse approach, if someone looks at the building and, using that as the basis of their design, then draws their own plans based on how the building looks, that, too, infringes the copyright.
So could this have happened here? Direct copying is being denied, but Al Arab’s lawyers are alleging that the “concept” has been copied, and that is a much more difficult matter to establish. There have been cases where it has been held that seeking to recreate another type of artistic work from scratch, using it effectively as inspiration, can infringe copyright, even though there is no actual direct copying and so the principle has been established in the courts. That will be the key issues here.
The infringement of copyright by reproducing two or three dimensional copies also explains why photography is usually forbidden in art galleries and museums (let alone the possible risk of damage to paintings from flash photography); taking a photograph for private use shouldn’t be treated as copyright infringement, but any commercial reproduction of that photograph would be. But please don’t worry that each time you take a photograph of the landscape you are breaching an architect’s copyright – in addition to general exclusions to permit copying artistic work for the purposes such as research, private study and review, there is a specific exemption for taking a photograph of any building or other artistic work which is permanently situated in a public place or in premises open to the public.
But here it isn’t just a photograph which has been taken – a full-size building is to be erected so this exclusion doesn’t apply.
In order to take a copyright claim further, the Al Arab’s owners will also have to establish that their copyright in Dubai is recognised in the UK. International copyright is based on international conventions and, for the majority of countries, the rule is that a resident of one country is given equivalent protection in another country as if he had created his artistic work in the other country in the first place.
If the owners of the Plymouth Tower do end up on the wrong end of a claim for copyright, they had better beware. The remedies open to an owner of copyright for infringement include not only seeking damages, but also the right to have infringing copies destroyed. We are familiar with stories of buildings having to be torn down because planning permission wasn’t obtained, but so far no building has had to be demolished because it infringed copyright.
Imitation may be the sincerest form of flattery, but beware that in doing so you don’t infringe anyone’s copyright!
FOR FURTHER INFORMATION PLEASE CONTACT: SCOTT KERR