Walking the 'Thin' Line of Architectural Copyright Protection
Copyright law protects original, creative works such as music, literature or film. Architecture is a creative art form that is seldom discussed in connection with, but is equally protected by, copyright law. When one conjures images of the Guggenheim Museum, the Parthenon or the Sistine Chapel, it is easy to understand why Frank Lloyd Wright deemed architecture the mother art, explaining that without an architecture of our own, we have no soul of our own civilization. These highly imaginative structures surely warrant protection as works of art. But, does every architectural design merit the same degree of protection regardless of its level of creativity?
Most architectural designs lie somewhere on the continuum between predominantly creative to entirely functional. The breadth of copyright protection available for any particular design is primarily dictated by how many nonfunctional, artistic features are expressed. Most modern architectural projects are largely driven by cost efficiencies, building codes and functionality requirements rather than purely aesthetic considerations. The scope of copyright protection for certain architectural works can, accordingly, become narrow or thin.
A Modicum of Creativity
The level of detail and creativity required to receive architectural copyright protection is low. The U.S. Court of Appeals for the Second Circuit recently held in Scholz Design v. Sard Custom Homes LLC, 691 F.3d 182 (2nd Cir. 2012), that three architectural drawings were entitled to copyright protection despite the fact that they lacked sufficient detail to allow for construction of the homes that were depicted. The court explained that the only requirement for copyrightability is that the work possesses at least some minimal degree of creativity … no matter how crude, humble or obvious it might be. Perhaps oddly, there is no requirement that architectural plans be developed enough to permit construction of the building represented in the drawings. Thus, it is easy to acquire copyright protection for an architectural design.
Functional and Standard Design Choices
Despite this exceedingly low threshold, the breadth of copyright protection is determined by the number of functional or standard design elements. If certain design elements of an architectural work are functionally required, they are not protected. There is similarly no protection for standard design features such as doors, windows, stairs, restrooms and other staple building components. Standard features can also be specific to certain styles of architecture. For example, the pointed arch or ribbed vault is a standard feature of Gothic architecture. There can be protection for the overall layout and arrangement of unprotected features, but not the features themselves.
The Merger of Idea and Expression
The breadth of copyright protection available to architectural works is sometimes further narrowed by the merger doctrine. Copyright does not protect ideas; it only protects their expression. If there are only a limited number of ways to express an architectural design, the idea and expression merge and copyright protection is unavailable. For example, a spiral staircase ascends and spirals. Although additional creative design features of a spiral staircase would be protectable, the idea of a spiral staircase at a low level of abstraction is inseparable from its expression and merges with it. If copyright protection were extended to ideas, there would be a monopoly on certain architectural elements.
Distinguishing an idea from its expression is particularly problematic in the context of architectural and engineering drawings. For example, in Attia v. Society of New York Hospital, 201 F.3d 50 (2nd Cir. 1999), an architect submitted drawings to a hospital planning to expand its existing facilities. He developed the novel concept of constructing the desired expansion over FDR Drive in New York City due to space constraints. Another architect later replaced him and submitted architectural drawings that also included a structure over FDR Drive. The court held that no copyright infringement occurred because defendants only took the plaintiffs idea and did not copy the plaintiffs actual expression, except to the extent that the defendants copied unprotected, functional elements. Although the plaintiffs idea was admittedly innovative, the power of an idea does not improve the creators right to prevent copying, the court said.
Determining which particular and type of design elements are protected is critical in architectural copyright-infringement lawsuits. Copyright infringement exists where there is substantial similarity between the two architectural works. Although there is variation amongst courts as to what test to apply, courts most often conduct a side-by-side comparison of architectural designs without affording protection to ideas or functional/standard design elements. Some courts have adopted a test that filters out unprotected design features before comparing the works. The more design features that are artistic and protected, the broader the copyright protection. Conversely, works that have few protected features are deemed to have thin copyright protection.
It is crucial to understand the scope of architectural copyright protection when filing copyright applications, deciding whether to borrow a feature from another design or litigating a lawsuit for infringement. A recent wrongful-termination lawsuit illustrates the importance of understanding this area of the law. In Young v. Nortex Foundation Designs, 2013 Tex. App. LEXIS 1222 (Tex. App. Fort Worth Feb. 7, 2013), a drafter sued his employer because he was fired for refusing to copy someone elses architectural drawings. The employee prevailed because his employer requested him to perform an illegal act and was awarded over $300,000 in damages.
The line between what is protected and what is not can be thin. Functional and standard design choices will not garner copyright protection, nor will mere ideas. While is it easy to obtain copyright protection for architectural designs, the scope of such protection will vary based upon the work. Not every architectural work will rival the Taj Mahal, but there is most likely thin protection for even the most preliminary sketches of a functional building.
M. Kelly Tillery, a national authority in intellectual property, is a partner with Pepper Hamilton and a member of the firms intellectual property practice group. He can be reached at 215-981-4401 or email@example.com.
Megan M. Kearney is an associate in the firms intellectual property practice group. She can be reached at 215-981-4099 or firstname.lastname@example.org.
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