Article by Raleigh W. Newsam, II
The architectural design of buildings entered the United States law of copyright with the passage of the Architectural Works Copyright Protection Act of 1990 (the Act). Architectural works are now included as a category of copyrightable subject matter. The Act defines an architectural work 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.‘
This definition raises fundamental questions: What is copyrightable in an architectural design? When is a design original enough to merit copyright protection? Which elements of a design are protectable? When does the design of one architectural work go so far as to infringe upon the design of another? By what standards should the two designs be compared?
This Article advocates that such issues be addressed by a structured inquiry into the architectural design process, consistent with established principles of copyright law. Using the design process as a frame of reference should avoid ad hoc determinations that may prove detrimental to progress in architectural design. The suggested approach focuses on a detailed analysis of the process and content of architectural design.
The author proposes a three-step test for locating those original design elements in an architectural work which warrant copyright protection. The first step identifies the various levels of abstraction—the multiple design ideas or partis—present in an architectural design. The second step separates the unprotectable design ideas from the protectable developed expression and filters out (i) unprotectable standard details, (ii) design elements dictated by external factors, (iii) design elements taken from the public domain, and (iv) design elements excluded by the merger doctrine. The third step, required by the Act, excludes design elements which are required by functional considerations. At the conclusion of this step the core of protectable design elements—the poetic language of architecture—remains. The final step compares this core of protectable design expression with those analogous elements in an allegedly infringing design.
To illustrate its application, the author uses the proposed test to compare two similar buildings designed by Frank Lloyd Wright. The analysis demonstrates how two buildings which embody deceptively similar design concepts differ enough in the refinement of their design expression to preclude a finding of infringement. Although the proposed test will likely result in narrow protection for architectural works, such an approach comports with the creative process by which architects design buildings and will promote the advancement of architectural design.
About the Author
Raleigh W. Newsam, II. B. Arch. 1967, Cornell University; M.S. 1973, Massachusetts Institute of Technology; J.D. 1992, Southern Methodist University.
Citation
71 Tul. L. Rev. 1073 (1997)