Putting the House Back Together Again: The Scope of Copyright Protection for Architectural Works

Author:Lauren Jean Bradberry
Pages:267-305
 
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Putting the House Back Together Again: The Scope of
Copyright Protection for Architectural Works
TABLE OF CONTENTS
Introduction ................................................................................... 268
I. Pre-AWCPA Copyright Protection for Architectural Works ........ 271
A. The Standard for Copyright Protection is an
Exceedingly Easy Hurdle to Overcome ................................. 272
B. Pre-AWCPA Architectural Works Were Only Protected
as Non-Utilitarian Sculptures that Passed the Conceptual
Separability Test .................................................................... 275
II. The AWCPA, Congressional Intent, and Courts’ Treatment ........ 279
A. The AWCPA and the Broad Definition of
Architectural Works ............................................................... 279
B. Applying the Abstract Standards for Scope of Protection
in Infringement Claim Cases .................................................. 282
1. Congress’s Non-Functionality Test ................................. 282
2. The Eleventh Circuit’s Categorical Test.......................... 283
3. The Second Circuit’s Dissection Test ................................. 286
III. Functionality, Categorization, and Dissection and Their
Unwarranted Rigorous Application .............................................. 288
A. Congress’s Non-Functionality Test: The Separability
Test by a Different Name ....................................................... 288
B. Eleventh Circuit Categorical Test: Against the Intent
of Congress and Generalized Notions of Copyright Law ...... 290
C. Second Circuit Dissection Method: Best Choice,
but Still Not Perfect ................................................................ 291
IV. Similar Complex Works Offer Insight Into the Scope
of Protection for Architecture ....................................................... 293
A. Computer Programs ............................................................... 294
B. Industrial Design .................................................................... 298
V. Putting the House Back Together Again ....................................... 300
A. Step One: Protecting the Original Overall Form ..................... 301
B. Step Two: Protecting Individual Elements .............................. 303
Conclusion ..................................................................................... 304
268 LOUISIANA LAW REVIEW [Vol. 76
INTRODUCTION
The Taliesin estate in Spring Green, Wisconsin is an extraordinary
design by famed architect Frank Lloyd Wright.1 The house is anything but
expected with its unique roof line, use of natural materials, incorporation
into the topography, and revolutionary overall look and feel. The house
features red doors that stand in contrast to the earthy tones of the house, as
well as exceptional window shapes and patterns that cause the eye to linger.
The house is built on multiple levels to be in harmony with the hilly terrain.
Sculptures and looking ponds adorn the grounds in expertly selected
locations. The most eye-catching feature of the house is undoubtedly the
roof line with its distinctive angles that create striking shapes.
Architectural works such as the Taliesin create the backdrop to human
life and are an integral piece of society’s cultural experience.2 As phones
with camera capabilities and scanners become more sophisticated and the
ease with which material can be downloaded from the internet becomes
increasingly simple, however, architects face the increasingly difficult task of
trying “to prevent unauthorized copying of their work.”3 The Taliesin—or
perhaps more precisely, Wright—deserves protection against unauthorized,
unlawful copiers.4 The protections against unlawful copying of ar chitect ural
Copyright 2015, by LAUREN BRADBERRY.
1. Frank Lloyd Wright was a visionary in the field of architecture favoring a new,
American spirit in architecture over the historic, imported European styles. See, e.g.,
Frank Lloyd Wright’s Taliesin Celebrates 100 Years, ARCHITECTURAL REC. (April 22,
2011), http://archrecord.construction.com/news/2011 /04/110422-Taliesin.asp. For this
discussion, it might be useful to view pictures of Taliesin, Wright’s self-designed home
in Wisconsin, which are available on a variety of websites. See, e.g., Travel United
States: Taliesin Residence, D. HOLMES CHAMBERLIN JR. ARCHITECT LLC, http://www
.dchamberlinarchitect.com/travel-north%20america-united%20states-wisconsi n-
spring%20green-taliesin-FLW%20HOME.htm [http://perma. cc/62H3-9Y6U] (last
revised July 2011).
2. See H.R. REP. NO. 101-735, at 12 (1990), reprinted in 1990 U.S.C.C.A.N.
6935, 6943 (quoting Frank Lloyd Wright as saying: “Buildings will always remain
the most valuable aspect in a people’s environment, the one most capable of cultural
reaction”); see also MARIAN MOFFETT, MICHAEL W. FAZIO & LAWRENCE
WODEHOUSE, A WORLD HISTORY OF ARCHITECTURE 1 (2003) (“[T]he best of
[architecture] expresses the tastes and aspirations of the entire society.”).
3. Richard M. McDermott & Jason M. Sneed, What Every Architect Should
Know About Copyright Law: Practice Matters, ARCHITECTURAL REC., https://arch
record.construction.com/practice/pdfs/0401copyrightlaw.pdf (last visited Aug. 19,
2015) (“[P]eople are more disrespectful than ever of laws intended to protect
intellectual property.”).
4. The infringement analysis and scope of the protection analysis are
intertwined. The threshold question for infringement includes whether the work
is within the scope of protection dictated by the Copyright Act. See Charles W.
Ross Builder, Inc. v. Olsen Fine Home Bldg., LLC, 827 F. Supp. 2d 607, 618
(E.D. Va. 2011) (“The threshold questions with respect to the substantial
2015] COMMENT 269
works are found in the 1990 Architectural Works Copyright Protection Act
(“AWCPA”).5 The AWCPA amended the section of the Copyright Act on
subject matter to incl ude “architectural wor ks” within its scope,6 and it
also added an expansive definition of those works.7 The definition
supplied in the AWCPA states that “[a]n ‘architectural work’ is the design
of a building . . . includ[ing] the overall form as well as the arrangement
and composition of spaces and elements in the design.”8 With such a broad
definition of an architectural work, it seems obvious that a home as
original as the Taliesin estate would receive protection from unlawful
copying. Neither Congress nor the courts, however, have proffered a test
that would offer copyright protection to the Taliesin for fear of hindering
progress and competition in the field.9
This Comment examines the three most widely recognized tests for
the scope of architectural copyright protection: Congress’s “non-
functionality” test, the Eleventh Circuit’s “categorization” test, and the
Second Circuit’s “dissection test.” The House Report on the AWCPA
explains the congressional test.10 This Comment labels that test as the
“non-functionality test.” The non-functionality test determines whether
design elements of an architectural work are functional or aesthetic11 and
is difficult to apply to a complex work like the Taliesin, which has intrinsic
utilitarian value and intertwines artful design with the functional aspects
similarity inquiry are, therefore, twofold: first, what is the nature and extent of
protection, if any, owed to Plaintiff under the Copyright Act; and second, which
components, if any, of Plaintiff’s work are original and thereby entitled to
protection under the Act?”). This Comment focuses on the initial question of
whether the work is protected under the Copyright Act but necessarily discusses
the infringement standard for a full analysis of the scope of protection.
5. Congress added protection for architectural works to comply with Berne
Convention standards, a World Intellectual Property Organization (“WIPO”)
administered treaty. H.R. REP. NO. 101-735, at 20–21, reprinted in 1990
U.S.C.C.A.N. 6935, 6951–52. Copyright protection gives the owner the exclusive
right to reproduce the copyrighted work, to prepare derivative works, and to
distribute copies of the copyrighted work for a limited period of time. 17 U.S.C.
§ 106 (2012).
6. 17 U.S.C. § 102(a)(8) (2012).
7. Id.
8. 17 U.S.C. § 101 (2012).
9. Despite the expansive definition in the AWCPA, the overall trend in the
courts is to provide buildings with “thin” protection. David E. Shipley, The
Architectural Works Copyright Protection Act at Twenty: Has Full Protection
Made A Difference?, 18 J. INTELL. PROP. L. 1, 6 (2010); Satava v. Lowry, 323
F.3d 805, 812 (9th Cir. 2003) (“‘[T]hin’ copyright[s] . . . protect[] against only
virtually identical c opying.”).
10. H.R. REP. NO. 101-735, at 20–21, reprinted in 1990 U.S.C.C.A.N. 6935,
6951–52.
11. Id. (“If [original] design elements are present, a second step is reached to
examine whether the design elements are functionally required.”).

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