THE ARCHITECTURAL WORKS COPYRIGHT ACT: CAN IT PROTECT AN ARCHITECTS STATE OF THE ART DEVELOPMENT WHEN FUNDED THROUGH FEDERAL DOLLARS?

• Author: Moore, Kyle R.

INTRODUCTION I. BACKGROUND A. Architects and Their Architectural Works B. Copyrights in the United States C. Housing Authority of the City of Milwaukee and its Federal Government Relationship D. AWCPA and the Need for Protection E. AWCPA and its Scope of Protection II. OWNERSHIP ISSUES AND THE RELIEF AVAILABLE III. SUGGESTION CONCLUSION Introduction

Westlawn Gardens, the multi-million, multi-phase redevelopment, is nearing completion. As it stands, the LEED award winning development is the largest public housing neighborhood in Wisconsin. (1) But what if a commercial company or individual tried to recreate that development; would the original architect's work be protected under copyright law?

Copyright law has provided no answers and the law typically protects the architect, but when federal dollars are handed down to independent agencies the ownership line is blurred. (2) 17 United States Code Section 105, states that "copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise." (3) Thus, the federal government cannot create a copyright. As a result, no one knows if an independent housing authority, and the contracting or subcontracting architects, can protect their work when they receive money from the Housing and Urban Development ("HUD"), a cabinet in the executive branch. (4) It would make sense to say that the Housing Authority of the City of Milwaukee ("HACM") has the ability to copyright its project, since it was the agency that procured the various architects to create this masterpiece. However, should HACM be barred from protecting its development, since the funds are from the federal government? And do the architects have any say in this, because, after all, it is the result of their work?

This writer asserts that there should be available protection for both the independent agency and the architects. This Comment will shed light on those questions by analyzing the breadth of the Architectural Works Copyright Protection Act ("AWCPA"), and the ties between the federal government and local agencies who utilize its funds for public purposes. Milwaukee's housing authority will be used as an example, and the first section will provide relevant background on the current AWCPA scheme. The second part of this Comment will analyze the ownership issues that arise from the current AWCPA scheme. Finally, this Comment will assert the relief available to architects whose architectural works are funded with federal dollars.

1. Background

   1. Architects and Their Architectural Works

      Architects plan and design the various buildings, offices, houses, complexes, and structures that we live and breathe in. (5) We often do not think of the impacts that architects have on the world, but they have shaped the world as we see it. (6) In fact, research has shown that the physical environment of a building can have an impact on its users and patients. (7) Architect Gene Klow remarked that:

      "recent research has demonstrated that the healing experience for patients in healthcare facilities is significantly enhanced when they are in a building that provides a nurturing environment. Just as healthcare facilities can improve the sensory experience of a patient, great architecture can not only meet the individual needs of its inhabitants efficiently, it can also uplift the human spirit." (8)

      Architect Chris Johnston added that:

      "[architecture is a unique blending of the arts with sciences as evidenced by its greatest exponent, Michelangelo. Architects who understand this premise can affect the lives of everyday people with their designs, for better or for worse ... [g]ood, thoughtful architecture can raise the human spirit to soaring heights, while [a] bad design can crush the life out of its users. It is incumbent upon the architect to not only understand this, but also to strive to achieve it, ensuring clients understand [that] good design will pay for itself in the long term." (9)

      An architects' livelihood is often dependent on their ability to create good designs for individuals and companies. An architects' work is vital to our existence and it is not a job that will be easily supplanted by software or machines. (10) That is why architects are highly compensated for their work. (11) But how do architects protect the architectural works that they have put a significant amount of time and energy into? Architects turn to copyright law in those situations.

      Copyright law has grown significantly since its creation, but its growth has been sluggish in the world of architecture. (12) Congress enacted the first federal copyright law in May, 1790. (13) Since its enactment, copyright law has managed to flourish by promoting creativity, while maintaining the integrity of the various artists, musicians, and actors. (14) Yet, the growth has been slow for architects and especially those procured though local governmental bodies because the Act itself fails to mention local governmental bodies and it does not support federal protection. (15) Moreover, the public nature of architectural works makes copyright issues even more complicated. (16) That is, architectural work is put on full display for individuals by its very nature. (17) The finished products are pervasive. (18) As a result, the AWCPA's protection is interpreted broadly, but it still may not apply to a situation like this. (19)

   2. Copyrights in the United States

      "Copyright is a form of protection provided by the laws of United States to authors of 'original works of authorship,' including literary, dramatic, musical, artistic, and certain other intellectual works.'" (20) The rights are not unlimited, but it is illegal for anyone to violate any of the rights provided by the...