The Architectural Works Copyright Protection Act at Twenty: Has Full Protection Made a Difference?

Journal of Intellectual Property Law Volume 18 | Issue 1 Article 2 October 2010 The Architectural Works Copyright Protection Act at Twenty: Has Full Protection Made a Difference? David E. Shipley Follow this and additional works at: https://digitalcommons.law.uga.edu/jipl Part of the Construction Law Commons, Intellectual Property Law Commons, and the Property Law and Real Estate Commons Recommended Citation David E. Shipley, The Architectural Works Copyright Protection Act at Twenty: Has Full Protection Made a Difference?, 18 J. Intell. Prop. L. 1 (2010). Available at: https://digitalcommons.law.uga.edu/jipl/vol18/iss1/2 This Article is brought to you for free and open access by Digital Commons @ Georgia Law. It has been accepted for inclusion in Journal of Intellectual Property Law by an authorized editor of Digital Commons @ Georgia Law. Please share how you have benefited from this access For more information, please contact . Shipley: The Architectural Works Copyright Protection Act at Twenty: Has F JOURNAL OF INTELLECTUAL PROPERTY LAW VOLUME 18 FALL 2010 NUMBER 1 ARTICLES THE ARCHITECTURAL WORKS COPYRIGHT PROTECTION ACT AT TWENTY: HAS FULL PROTECTION MADE A DIFFERENCE? David E. Shioley* TABLE OF CONTENTS 3 I. IN TRO D UCTIO N ........................................................................................... II. THE NEED FOR PROTECTION AND DEFINING AN 8 "ARCHITECTURAL WORK"....................................................................... 11 A. WHAT IS A BUILDING?....................................................................... B. MUST THE BUILDING BE CAPABLE OF CONSTRUCTION?.............13 III. COPYRIGHT OWNERSHIP ISSUES.......................................................... IV. SATISFYING THE ORIGINALITY REQUIREMENT.................................20 V. INFRINGEMENT OF ARCHITECTURAL WORKS....................................24 24 A . THE BASICS.......................................................................................... B. INFRINGEMENT BY THE REPRODUCTION OF PLANS..................28 C. REVISION OF PLANS AND THE SECTION 120(B) LIMITATION ......... 29 32 D. UNAUTHORIZED USE OF PLANS...................................................... E. SECTION 120(A) AND UNAUTHORIZED PHOTOGRAPHS OF 35 ARCHITECTURAL WORKS ................................................................. 16 Thomas R.R. Cobb Professor of Law, University of Georgia School of Law. B.A. 1972, Oberlin College; J.D. 1975, University of Chicago. 1 Published by Digital Commons @ Georgia Law, 2010 1 Journal of Intellectual Property Law, Vol. 18, Iss. 1 [2010], Art. 2 J.INTELL PROP. L 2 [Vol. 18:1 VI. GENERAL SCOPE OF PROTECTION ISSUES..........................................39 ................ 40 A. THE SUBTRACTIVE APPROACH ............... 42 ................................ B. THE TOTALITY APPROACH 43 ........................ THE APPROACHES C. COMBINING D. FUNCTIONALITY AS A LIMIT ON THE SCOPE OF PROTECTION ...... 44 VII. As APPLIED-JUDICIAL RESOLUTION OF SCOPE OF PROTECTION 45 ISSU E S......................................................................................................... A. RESIDENTIAL HOMES....................................................................... 45 B. CONDOMINIUMS ...................................................... 48 49 C. MORE COMPLEX STRUCTURES........................................................ D. SUCCESS STORIES OR WITHSTANDING SUMMARY JUDGMENT ....... 53 VIII. CONCLUDING OBSERVATIONS .............................................................. https://digitalcommons.law.uga.edu/jipl/vol18/iss1/2 59 2 Shipley: The Architectural Works Copyright Protection Act at Twenty: Has F 2010] TWENTY YEARS OF THE AWCPA 3 I. INTRODUCTION Many critically acclaimed buildings were designed by H.H. Richardson, Louis Sullivan, Frank Lloyd Wright, Max Abramovitz, Robert Venturi and other highly regarded American architects during the latter part of the nineteenth century and through most of the twentieth century. Their artistry flourished even though their works received only second-class protection under United States copyright law until 1990. Architects and their works did not receive the same level of protection that copyright law extended to the paintings, sculptures, and other works of authorship created by their highly regarded contemporaries in those other fine arts. The Copyright Act of 1909 did not include architectural plans, blueprints, designs, or models as copyrightable subject matter, and the 1976 Act did not mention architectural works either.' Even though our copyright statutes were silent about architecture until 1990, it was well established that plans, blueprints and models were copyrightable writings under the 1909 Act's category of "drawings or plastic works of a scientific or technical character," 2 and then as "pictorial, graphic, and sculptural works" under the 1976 Act.3 The scope of an architect's copyright protection was, however, quite limited. The unauthorized copying of plans or blueprints constituted infringement, 4 but most authorities concluded that plans were not infringed by using them, without the architect's permission, to construct the building they depicted.5 Moreover, the prevailing view was that an architect's 6 rights did not extend to the actual building derived from his or her plans. A 7 building, as a useful article, could be protected by copyright only to the extent I MARSHALL LEAFFER, UNDERSTANDING COPYRIGHT LAw 130 (5th ed. 2010); David Shipley, Copynght ProtecfionforArchitecturalWorks, 37 S.C. L. REv. 393, 395 (1986). 2 17 U.S.C. 5 5(i) (1973). 3 17 U.S.C. $ 102(a)(5) (2006). See also Leicester v. Warner Bros., 232 F.3d 1212, 1227 (9th Cir. 2000) (Fisher, J., dissenting). The definition of pictorial, graphic, and sculptural works was amended in 1990 to include architectural plans. Pub. L. No. 100-568, § 4(a)(1)(A), 102 Stat. 2853 (1988) (codified at 17 U.S.C. § 101). 4 See, e.g., Aitken, Hazen, Hoffman, Miller, P.C. v. Empire Const. Co., 542 F. Supp. 252 (D. Neb. 1982); Meltzer v. Zoller, 520 F. Supp. 847 (D.N.J. 1981). 5 Compare Scholz Homes, Inc. v. Maddox, 379 F.2d 84 (6th Cir. 1967), with Imperial Homes v. Lamont, 458 F.2d 895 (5th Cir. 1972). See also Shipley, supra note 1, at 403-06; LEAFFER, supra note 1, at 130-31 ("[C]opyright in architectural plans or models did not convey a right to control their use."). 6 Shipley, supra note 1, at 395. 7 PAUL GOLDSTEIN, COPYRIGHT %§ 2.15.1, 2:183 (1996) (buildings erected from blueprints and plans will rarely qualify as pictorial, graphic, or sculptural works because their intrinsic utilitarian function makes them "useful articles"). A useful article is defined as "an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. An article that is normally a part of a useful article is considered a 'useful article.'" 17 U.S. (...truncated)