The Architectural Works Copyright Protection Gesture of 1990, Or, "Hey, That Looks Like My Building!

Masthead Logo DePaul Journal of Art, Technology & Intellectual Property Law Volume 7 Issue 1 Fall 1996 Article 2 The Architectural Works Copyright Protection Gesture of 1990, Or, "Hey, That Looks Like My Building!" Clark T. Thiel Follow this and additional works at: https://via.library.depaul.edu/jatip Recommended Citation Clark T. Thiel, The Architectural Works Copyright Protection Gesture of 1990, Or, "Hey, That Looks Like My Building!", 7 DePaul J. Art, Tech. & Intell. Prop. L. 1 (1996) Available at: https://via.library.depaul.edu/jatip/vol7/iss1/2 This Lead Article is brought to you for free and open access by the College of Law at Via Sapientiae. It has been accepted for inclusion in DePaul Journal of Art, Technology & Intellectual Property Law by an authorized editor of Via Sapientiae. For more information, please contact , . Thiel: The Architectural Works Copyright Protection Gesture of 1990, Or, THE ARCHITECTURAL WORKS COPYRIGHT PROTECTION GESTURE OF 1990, OR, "HEY, THATLOOKS LIKE MYBUILD1NG!" Clark T. Thier* INTRODUCTION .................................................... 2 I. BACKGROUND OF THE ARCHITECTURAL WoRKs COPYRIGHT PROTECTION ACT 3 A. A HistoricalOverview of United States CopyrightLaw............ 3 B. CopyrightProtection Underthe 1976 CopyrightAct. .............. 5 C. The United States and the Berne Convention for the Protection of LiteraryandArtistic Works..................................... 13 I1. THE CuRRENT STATE OF UNITED STATES COPYRIGHT PROTECTION FOR ARcnI Tu RAL WoRKS ........................................ 19 A. The ArchitecturalWorks CopyrightProtectionAct of 1990........ 19 B. Limitations on the Architects' Right to Create and Distribute Derivative Works ....... ............................................... 20 m . ANALYSIS ................................................... 23 A. A CloserLook at the PictorialRepresentationException........... 23 B. The FairUse Doctrine...................................... 26 C. United States Compliance With InternationalLaw .............. 28 D. A ProposedSolution........................................ 32 CONCLUSION ..................................................... 35 "An earlier version of this article received first prize in the 1996 Nathan Burkan Memorial Competition at the University of California School of Law at Davis, sponsored by the American Society of Composers, Authors, & Publishers ("ASCAP"), and, at publication, is entered in the National Competition. - B.S. 1984, University of Wisconsin at Milwaukee; Master of Architecture 1988, University ofWisconsin at Milwaukee; third-year student, King Hall School of Law, University of California at Davis. Registered Architect in the States of Hawaii and Wisconsin; Certified by the National Council of Architect Registration Boards. I am very grateful to Pamela Thiel, David Smith, Jim Touchstone, Harry Ermoian, Jason Schaumberg, and Stacey Sheston for their insight, advice and guidance. Published by Via Sapientiae, 2016 1 DePaul Journal of Art, Technology & Intellectual Property Law, Vol. 7, Iss. 1 [2016], Art. 2 2 DEPAUL J. ART& ENT LAW [Vol. VII: I INTRODUCTION On December 1, 1990, the Architectural Works Copyright Protection Act' (AWCPA) became law. The United States, for the first time, provided copyright protection for architectural structures. This new law established certain property rights in architectural designs, enabling architects to better control exploitation of their works. 2 Generally, the AWCPA provides architects with the exclusive right to reproduce or alter their copyrighted works. 3 Furthermore, the AWCPA brings the United States closer to full compliance with its obligations stemming from the international copyright treaty known as the Berne Convention The AWCPA, however, affords only limited protection for architectural structures.' The Act's provisions require the architect to surrender to the building's owner the right to alter or destroy the work.' Moreover, the public retains the right to make pictorial representations of the architect's work.7 This article argues that the architect's copyright should include the exclusive right to make or authorize pictorial representations of architectural works. Congress should amend the AWCPA to better protect this valuable form of art8 while simultaneously taking another step toward full 1. Architectural Works Copyright Protection Act of 1990, Pub. L. No. 101-650, 701,703, 104 Stat 5128,5133 (1990) (codified in scattered sections of 17 U.S.C., including §§ 101(5), 102(aX8), 120 (Supp. H 1990)). 2. See infra notes 19-23, 31 and accompanying text (defining copyright as bundle of property rights). 3. See infra notes 117-152 and accompanying text (discussing architecfs rights under AWCPA). 4. See infra notes 184-194 and accompanying text (discussing United States compliance with intemational law obligations arising from Berne Convention for the Protection of Literary and Artistic Works, September 9,1886, 828 U.N.T.S. 221 (Paris Revision, July 24, 1971)). On October 31, 1988, President Ronald Reagan signed into law the Berne Convention Implementation Act of 1988. Pub. L. No. 100-568, 102 Stat. 2853 (1988). 5. See 17 U.S.C. § 120 (Supp. H 1990) (defining scope of exclusive rights in architectural works); see also id. § 101 (defining "Architectural Work"). An "architectural work" is the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings. Id. The work includes the overall form as well as the arrangement and composition of spaces and elements in the design, but does not include individual standard features. Id. 6. Id. § 120(b). The owner ofa building embodying an architectural work may, without the consent of the copyright owner, make or authorize the making of alterations to the building. Id. The owner may also destroy or authorize the destruction of the building. Id. 7. Id. § 120(a). The copyright ina constructed architectural work does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations ofthe work. Id. This exception applies only if the building embodying the work is located in or ordinarily visible from a public place. Id. 8. Pub. L. No. 101-650, reprintedin 1990 U.S.C.C.A.N. (101 Stat.) 6936. Congress determined that architecture is a form of artistic expression that performs a significant societal purpose, both domestically and internationally. Id. See also Raphael Winick, Copyright ProtectionforArchitectureAfter the ArchitecturalWorks CopyrightProtectionAct of 1990, 41 DuKE L. J. 1598, 1599-1600 (1992) (discussing architecture's importance as art form). https://via.library.depaul.edu/jatip/vol7/iss1/2 2 Thiel: The Architectural Works Copyright Protection Gesture of 1990, Or, 1996] ARCH. WORKS COPYRIGHTACT 3 Beme Convention compliance. Part I of this article discus (...truncated)