Prior to the enactment of Architectural Works Copyright Protection Act of 1990 (AWCPA), only architectural drawings were copyrightable. AWCPA expanded copyright protection to completed buildings. However, recent court cases reveal considerable uncertainty regarding what is considered copyrightable. What can architects do to manage copyright protection for architectural works?
Title 17 of the United States Code contains the Copyright Law of the United States. In order to be protected under the Copyright laws, a work must have authorship; it must be original; and it must be fixed in a tangible medium of expression. Copyright laws attempt to balance two competing policy interests. The author should retain adequate economic incentive to produce such works, and the author’s monopoly should not be too broad to prevent others from developing competing works.
Architectural Works Copyright Protection Act
The United States Congress passed the Architectural Works Copyright Protection Act (AWCPA) in 1990 to protect the copyrights for architectural works. Architectural work is defined as the “design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings. 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.” 1
Significant court decisions
Attia v Society of the New York Hospital. This case involves infringement of conceptual drawings prepared by the plaintiff. The defendant used these conceptual drawings in the development of final drawings for the client. The Second Circuit Court determined that drawings were not infringed since they represented mere ideas in their preliminary and conceptual form. The court based its decision on what is known as “substantial similarity” test. “Determining whether there is “substantial similarity” requires the court to analyze not only the similar features, but also the differences.” 2 By saying that the plaintiff’s drawings were mere ideas and therefore not entitled for copyright protection, it failed to look at similar features and focused instead on differences. If the court had relied on the overall “look and feel” test, and analyzed the similar features as well as the differences, the decision might have been favorable to the plaintiff.
Shine v. Childs. This case involves infringement of certain elements of plaintiff’s design for the design of Freedom Tower by the defendant. The plaintiff argued that there were substantial similarities between each of his designs and defendant’s design for the Freedom Tower. The defendant argued that both designs were unoriginal and those aspects that appeared to be original were functionally required. The Court determined that copyright protection may extend to the conceptual phase of the architectural work. The court made four key observations in arriving at its decision. 1, AWCPA protection can extend to conceptual design. 2, An architectural work can be “original” even if certain elements have been used in the past. 3, Total concept and feel standard should be used to determine substantial similarity. 4, The similarity should be judged by ordinary observers. 3
Copyright protection for architectural works.
Despite the limitations of AWCPA discussed here and uncertainty surrounding Court decisions, the Act is a step in the right direction. Architects should proactively manage their copyrights for Architectural works through contractual language. They should incorporate specific provisions to deal with unique conditions of each client or project. “Surprisingly, a search on the Library of Congress website indicates that many of the largest architectural firms in the country do not have a single registered copyright. It is hard to imagine that projects with multimillion-dollar design fees are not worthy of the $30 fee to obtain federal registration and protection of the additional remedies afforded by registered copyrights.” 4
- This post is based on a research paper by the author for Business Law and Ethics in a Digital Age class at CUNY. The author is not a lawyer and this post does not constitute legal advice.
- 1 Copyright Law of the united States, US Copyrights Office, Washington DC, http://www.copyright.gov/title17/
- 2 MacMurray, Rashida Y. P., Trademarks or Copyrights, Northwestern Journal of Technology and Intellectual Property, Vol 3, No, 2, Spring 2005
- 3 Clanton, Matthew, W., A Tale of Two Towers, IP Supplement to Legal Times, May 8, 2006
- 4 MacMurray, Rashida Y. P., Trademarks or Copyrights, Northwestern Journal of Technology and Intellectual Property, Vol 3, No, 2, Spring 2005
- Title image: Freedom tower. Pierre Blaché, CC0, via Wikimedia Commons