Copyright Protection for Architecture After the Architectural Works Copyright Protection Act of 1990

COPYRIGHT PROTECTION FOR ARCHITECTURE AFTER THE ARCHITECTURAL WORKS COPYRIGHT PROTECTION ACT OF 1990 RAPHAEL WINICK INTRODUCTION On December 1, 1990, President Bush signed into law the Architectural Works Copyright Protection Act (AWCPA). 1 The AWCPA implements an important change in the treatment of architecture under American intellectual property law, explicitly extending American copyright protection, for the first time, to completed architectural works. The AWCPA extends protection to a very broad class of architectural works. 2 However, Congress carefully limited the scope of the protection enjoyed by these works. 3 The interplay between the AWCPA's broad subject matter and its limited protection presents several interpre4 tive questions. Furthermore, problems of substantial similarity, appropriate forms of relief,5 works for hire, 6 joint authorship, 7 and assignment of rights8 are only a few of the questions likely to arise. 1. Pub. L. No. 101-650, §§ 701-706, 104 Stat. 5133 (1990) (codified at scattered sections of 17 U.S.C.A.) (West Supp. 1992). Congress passed the AWCPA as part of the Judicial Improvements Act of 1990, Pub. L. No. 101-650, along with two other important pieces of intellectual property protection, the Visual Artists Rights Act of 1990, Pub. L. No. 101-650, §§ 601-610, 104 Stat. 5128 (1990) (codified at scattered sections of 17 U.S.C.A.) (West Supp. 1992), and the Computer Software Rental Amendment Act of 1990, Pub. L. No. 101-650, §§ 801-805, 104 Stat. 5134 (1990) (codified at scattered sections of 17 U.S.C.A) (West Supp. 1992). The Visual Artists Rights Act grants certain visual artists the rights of "attribution" and "integrity." The right of attribution ensures that artists are correctly identified with the works they create. The right of integrity allows these artists to protect their works against modifications and destruction that are prejudicial to their honor or reputations. See generally Robert Gorman, The Visual Artists Rights Act of 1990, 38 J. COPYRIGHT Soc'y 233 (1991). The Computer Software Rental Amendment Act grants computer software an exception to the "first sale" doctrine of copyright, preventing the owners of computer software from renting, lending, or leasing their programs for commercial advantage. Taken together, these three pieces of legislation represent the most significant revisions to American intellectual property law since the Copyright Act of 1976. 2. See infra Parts II(C)-(F). 3. See infra Part III. 4. See infra Part IV(A). 5. See infra Part III(C). 6. See infra Part IV(B)(1). 7. See infra Part IV(B)(2). 8. See infra Part IV(B)(3). 1598 Vol. 41:1598] ARCHITECTURAL COPYRIGHT 1599 This Note, intended as a guide to the provisions of the AWCPA, makes several specific recommendations to the courts and the practitioners who will be asked to craft an interpretive framework for the AWCPA. For the AWCPA to serve effectively the needs of society and the architectural profession, courts must carefully limit the scope of copyright protection of architectural works. Interpreters of the AWCPA must not overextend the AWCPA as if it were the only form of intellectual property protection for architecture. Indeed, as will be shown, the AWCPA provides only a small portion of the protection needed to stimulate the creativity of the architectural profession. The AWCPA should be viewed as a discrete part of a larger, more comprehensive scheme of intellectual property protection for architecture; as such, it should not be allowed to encroach upon the domain of patent, trademark, and local historic preservation laws. This Note concludes that the AWCPA, and the multi-faceted scheme of intellectual property protection for architecture of which it is a part, is well tailored to protect the societal interest in architectural creativity. Progress and creativity in the architectural profession are best served by limiting the copyright protection available to architectural works. Additionally, the approach taken by Congress yields useful lessons for possible reform of the law governing other types of applied art. I. BACKGROUND OF THE ARCHITECTURAL WORKS COPYRIGHT PROTECTION ACT A. Architecture, Society, and the Purposes of Copyright Law The importance of architecture as an art form is unquestioned. 9 For thousands of years, western cultures considered architecture their single most important art form. 10 Architects throughout history have viewed their craft as both expressing and driving culture.11 Architecture and 9. See WALTER GROPIUS, THE NEW ARCHITECTURE AND THE BAUHAUS 39-40 (P. Shand Morton trans., 1935) ("Architecture and design in a general sense are consequently matters of paramount concern to the nation at large."). Gropius, one of the great figures in twentieth-century architecture, also urged against the perception of architecture as somehow less valuable artistically than the other arts, calling this "one of our fatal legacies from a generation which arbitrarily elevated some of its branches above the rest as the 'Fine Arts.'" Id. 10. See, eg., TALBOT HAMLIN, ARCHITECTURE THROUGH THE AGES 30, 115, 153 (rev. ed. 1953) (tracing the central place of architecture in society from the culture of ancient Egypt through the Renaissance and beyond). Only during the Renaissance did painting and sculpture emerge as rivals to architecture in artistic significance. See id. at 324. 11. See GROPIUS, supra note 9, at 17-18 ("A breach has been made with the past, which allows us to envisage a new aspect of architecture corresponding to the technical civilization of the age we live in; ... although the outward forms of the New Architecture differ fundamentally in an organic sense from those of the old, they are not the personal whims of a handful of architects ... but simply the inevitable logical product of the intellectual, social and technical conditions of our age."). 1600 DUKE LAW JOURNAL [Vol. 41:1598 society have a profoundly interdependent relationship. Architecture expresses the values of its cultural context; at the same time it helps create 12 the culture that it inhabits. Architecture plays more than just an aesthetic role in society. For example, architecture performs invaluable utilitarian functions: Intelligent and creative architectural design makes everyday tasks infinitely easier. Architecture is also one of the most important service industries in the United States.1 3 In addition to its direct economic importance, architecture also promotes scientific advancement: The needs of architecture provided the impetuses for such varied technical advancements as the flush toilet, the elevator, reinforced concrete, plate glass, and the air conditioner, to name only a few.14 The social importance of architecture led most European nations to extend some copyright protection to architectural works.15 The scope of the protection offered by these nations ranges from quite limited to very broad protection.1 6 In contra (...truncated)