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

• Author: Lauren Jean Bradberry
• Pages: 267-305

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.”).