Putting the House Back Together Again: The Scope of Copyright Protection for Architectural Works

Louisiana Law Review Volume 76 | Number 1 The Voting Rights Act at 50: The Past, Present, and Future of the Right to Vote A Symposium of the Louisiana Law Review Fall 2015 Putting the House Back Together Again: The Scope of Copyright Protection for Architectural Works Lauren Jean Bradberry Repository Citation Lauren Jean Bradberry, Putting the House Back Together Again: The Scope of Copyright Protection for Architectural Works, 76 La. L. Rev. (2015) Available at: https://digitalcommons.law.lsu.edu/lalrev/vol76/iss1/14 This Comment is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact . Putting the House Back Together Again: The Scope of Copyright Protection for Architectural Works TABLE OF CONTENTS Introduction ................................................................................... 268 I. Pre-AWCPA Copyright Protection for Architectural Works........ 271 A. The Standard for Copyright Protection is an Exceedingly Easy Hurdle to Overcome ................................. 272 B. Pre-AWCPA Architectural Works Were Only Protected as Non-Utilitarian Sculptures that Passed the Conceptual Separability Test .................................................................... 275 II. The AWCPA, Congressional Intent, and Courts’ Treatment ........ 279 A. The AWCPA and the Broad Definition of Architectural Works ............................................................... 279 B. Applying the Abstract Standards for Scope of Protection in Infringement Claim Cases.................................................. 282 1. Congress’s Non-Functionality Test ................................. 282 2. The Eleventh Circuit’s Categorical Test.......................... 283 3. The Second Circuit’s Dissection Test................................. 286 III. Functionality, Categorization, and Dissection and Their Unwarranted Rigorous Application .............................................. 288 A. Congress’s Non-Functionality Test: The Separability Test by a Different Name ....................................................... 288 B. Eleventh Circuit Categorical Test: Against the Intent of Congress and Generalized Notions of Copyright Law ...... 290 C. Second Circuit Dissection Method: Best Choice, but Still Not Perfect................................................................ 291 IV. Similar Complex Works Offer Insight Into the Scope of Protection for Architecture ....................................................... 293 A. Computer Programs ............................................................... 294 B. Industrial Design .................................................................... 298 V. Putting the House Back Together Again....................................... 300 A. Step One: Protecting the Original Overall Form ..................... 301 B. Step Two: Protecting Individual Elements .............................. 303 Conclusion ..................................................................................... 304 268 LOUISIANA LAW REVIEW [Vol. 76 INTRODUCTION The Taliesin estate in Spring Green, Wisconsin is an extraordinary design by famed architect Frank Lloyd Wright.1 The house is anything but expected with its unique roof line, use of natural materials, incorporation into the topography, and revolutionary overall look and feel. The house features red doors that stand in contrast to the earthy tones of the house, as well as exceptional window shapes and patterns that cause the eye to linger. The house is built on multiple levels to be in harmony with the hilly terrain. Sculptures and looking ponds adorn the grounds in expertly selected locations. The most eye-catching feature of the house is undoubtedly the roof line with its distinctive angles that create striking shapes. Architectural works such as the Taliesin create the backdrop to human life and are an integral piece of society’s cultural experience.2 As phones with camera capabilities and scanners become more sophisticated and the ease with which material can be downloaded from the internet becomes increasingly simple, however, architects face the increasingly difficult task of trying “to prevent unauthorized copying of their work.”3 The Taliesin—or perhaps more precisely, Wright—deserves protection against unauthorized, unlawful copiers.4 The protections against unlawful copying of architectural Copyright 2015, by LAUREN BRADBERRY. 1. Frank Lloyd Wright was a visionary in the field of architecture favoring a new, American spirit in architecture over the historic, imported European styles. See, e.g., Frank Lloyd Wright’s Taliesin Celebrates 100 Years, ARCHITECTURAL REC. (April 22, 2011), http://archrecord.construction.com/news/2011/04/110422-Taliesin.asp. For this discussion, it might be useful to view pictures of Taliesin, Wright’s self-designed home in Wisconsin, which are available on a variety of websites. See, e.g., Travel United States: Taliesin Residence, D. HOLMES CHAMBERLIN JR. ARCHITECT LLC, http://www .dchamberlinarchitect.com/travel-north%20america-united%20states-wisconsinspring%20green-taliesin-FLW%20HOME.htm [http://perma.cc/62H3-9Y6U] (last revised July 2011). 2. See H.R. REP. NO. 101-735, at 12 (1990), reprinted in 1990 U.S.C.C.A.N. 6935, 6943 (quoting Frank Lloyd Wright as saying: “Buildings will always remain the most valuable aspect in a people’s environment, the one most capable of cultural reaction”); see also MARIAN MOFFETT, MICHAEL W. FAZIO & LAWRENCE WODEHOUSE, A WORLD HISTORY OF ARCHITECTURE 1 (2003) (“[T]he best of [architecture] expresses the tastes and aspirations of the entire society.”). 3. Richard M. McDermott & Jason M. Sneed, What Every Architect Should Know About Copyright Law: Practice Matters, ARCHITECTURAL REC., https://arch record.construction.com/practice/pdfs/0401copyrightlaw.pdf (last visited Aug. 19, 2015) (“[P]eople are more disrespectful than ever of laws intended to protect intellectual property.”). 4. The infringement analysis and scope of the protection analysis are intertwined. The threshold question for infringement includes whether the work is within the scope of protection dictated by the Copyright Act. See Charles W. Ross Builder, Inc. v. Olsen Fine Home Bldg., LLC, 827 F. Supp. 2d 607, 618 (E.D. Va. 2011) (“The threshold questions with respect to the substantial 2015] COMMENT 269 works are found in the 1990 Architectural Works Copyright Protection Act (“AWCPA”).5 The AWCPA amended the section of the Copyright Act on subject matter to include “architectural works” within its scope,6 and it also added an expansive definition of those works.7 The definition supplied in the AWCPA states that “[a]n ‘architectural work’ is the design of a building . . . includ[ing] the overall form as well as the arrangement and composition of spaces (...truncated)