Copyrightability of LEED-Certified Buildings: Approaching the AWCPA to Promote Green Architecture

St. John's Law Review Volume 89, Summer/Fall 2015, Numbers 2 & 3 Article 18 Copyrightability of LEED-Certified Buildings: Approaching the AWCPA to Promote Green Architecture Stephen Accursio Maniscalco Follow this and additional works at: https://scholarship.law.stjohns.edu/lawreview Part of the Intellectual Property Law Commons Recommended Citation Stephen Accursio Maniscalco (2015) "Copyrightability of LEED-Certified Buildings: Approaching the AWCPA to Promote Green Architecture," St. John's Law Review: Vol. 89 : No. 2 , Article 18. Available at: https://scholarship.law.stjohns.edu/lawreview/vol89/iss2/18 This Note is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in St. John's Law Review by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact . 37692-stj_89-2-3 Sheet No. 331 Side A 04/08/2016 13:04:55 FINAL_MANISCALCO 3/29/2016 3:20 PM COPYRIGHTABILITY OF LEED-CERTIFIED BUILDINGS: APPROACHING THE AWCPA TO PROMOTE GREEN ARCHITECTURE STEPHEN ACCURSIO MANISCALCO† INTRODUCTION In 2009, The Cooper Union for the Advancement of Science and Art opened the doors to 41 Cooper Square, its new academic building designed by Morphosis Architects.1 In 2010, the building secured a Leadership in Energy and Environmental Design (“LEED”) Platinum certification.2 LEED is a creditsbased rating system: The more “green” a building project is, the more LEED credits it will earn and the higher certification it will obtain.3 Buildings have deleterious environmental impacts, such as high energy consumption and high greenhouse gas emissions.4 The design of innovative buildings is critical to reducing waste generation, reducing energy and resource consumption, improving air quality, and slowing the rate of climate change. Therefore, the law should incentivize green architecture to the C M Y K 04/08/2016 13:04:55 1049 37692-stj_89-2-3 Sheet No. 331 Side A † Senior Staff Member, St. John’s Law Review; Member, St. John’s Moot Court Honor Society; J.D., magna cum laude, 2015, St. John’s University School of Law; Bachelor of Engineering, Civil Engineering, summa cum laude, 2008, The Cooper Union for the Advancement of Science and Art. I owe a debt of gratitude to Professor Mary Lyndon for her wisdom and guidance in writing this Note. 1 The Cooper Union for the Advancement of Science and Art/Morphosis Architects, ARCHDAILY (Nov. 12, 2009), http://www.archdaily.com/40471/the-cooperunion-for-the-advancement-of-science-and-art-morphosis-architects [hereinafter ARCHDAILY]. 2 41 Cooper Square Becomes First Academic Building in New York City To Be Certified LEED Platinum, AT COOPER UNION, Fall–Winter 2010, at 3, available at http://cooper.edu/sites/default/files/uploads/assets/site/files/ACU_FallWint10_2.pdf [hereinafter AT COOPER UNION]. 3 LEED, U.S. GREEN BUILDING COUNCIL, http://www.usgbc.org/leed (last visited Mar. 23, 2015) [hereinafter U.S. GREEN BUILDING COUNCIL]. 4 See infra Part I.A. 37692-stj_89-2-3 Sheet No. 331 Side B 04/08/2016 13:04:55 FINAL_MANISCALCO 1050 3/29/2016 3:20 PM ST. JOHN’S LAW REVIEW [Vol. 89:1049 5 C M Y K 04/08/2016 13:04:55 ARCHDAILY, supra note 1. Id. 7 Id. 8 Ada Louise Huxtable, State of the Cooper Union, WALL ST. J. (Dec. 2, 2009), http://online.wsj.com/news/articles/SB100014240527487034994045745617528129909 12. 9 17 U.S.C. § 102(a)(8) (2012). 10 U.S. GREEN BUILDING COUNCIL, supra note 3. 11 See, e.g., Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 348 (1991). 6 37692-stj_89-2-3 Sheet No. 331 Side B greatest extent possible; this should include both robust copyright protection and the LEED certification system, without the latter limiting the former. Morphosis Architects arranged the rooms and spaces of 41 Cooper Square so that seventy-five percent of the building’s regularly occupied rooms are lit by natural light.5 Also, the architects included a central full-height atrium, housing a huge staircase, designed to improve air circulation and to allow natural light to permeate the center of the structure.6 These design features serve two purposes. First, they are environmentally friendly because they lower the building’s energy consumption and improve the building’s indoor air quality.7 Second, the architects’ arrangement choices and central atrium design are stylistically creative. For example, according to a renowned architecture critic, the atrium is an “intricate, soaring, free-form, white tube lattice, like a huge abstract sculpture, fill[ing] the space around the stair and defin[ing] the edges of the void, fencing in the open floors at each level.”8 To encourage architects to be stylistically creative, the Architectural Works Copyright Protection Act of 1990 (“AWCPA”) grants copyright protection in original architectural works.9 To encourage architects to be environmentally conscious, the LEED certification system awards LEED credits for sustainable design features.10 What should be the relationship between LEED and the AWCPA? Should the AWCPA be constrained by LEED? No court has specifically addressed copyright protection in LEED-certified buildings. It is undisputed that copyright protection only extends to those elements of an architectural work that are original to the architect.11 Some courts, however, consider market demands, building codes, and functional demands as factors limiting architects’ opportunities for 37692-stj_89-2-3 Sheet No. 332 Side A 04/08/2016 13:04:55 FINAL_MANISCALCO 2015] AWCPA & LEED-CERTIFIED BUILDINGS 3/29/2016 3:20 PM 1051 C M Y K 04/08/2016 13:04:55 12 See, e.g., Harvester, Inc. v. Rule Joy Trammell + Rubio, LLC, 716 F. Supp. 2d 428, 440–41 (E.D. Va. 2010). 13 Courts consider these factors in applying the merger doctrine. See infra Part II.B. Under the merger doctrine, when there is a limited number of ways to express an idea, the expression merges with the idea and is, thus, unprotectable. Morrissey v. Procter & Gamble Co., 379 F.2d 675, 678 (1st Cir. 1967). 14 See infra Part I.A.2. 15 See, e.g., Frank Betz Assocs., Inc. v. Signature Homes, Inc., No. 3:06-0911, 2010 WL 1373268, at *4 (M.D. Tenn. Mar. 29, 2010). 37692-stj_89-2-3 Sheet No. 332 Side A originality.12 These courts reason that the factors reduce the number of available ways to express an architectural idea because the factors dictate, to a certain extent, the design options available to the architect.13 Because LEED-certified buildings are popular, inherently functional, and, sometimes, required by regulation,14 these courts may conclude that some elements of LEED-certified buildings are unoriginal and are not copyright protected. Other courts analyze copyrightability of architectural works differently.15 To determine whether an architectural element is original under this second approach, the architect’s intention is not considered. Outside constraints, like market demands and efficiency, ar (...truncated)