Narrativizing the Architectural Copyright Act: Another View of the Cathedral
30 Pages Posted: 2 Nov 2012 Last revised: 8 Aug 2013
Date Written: June 22, 2013
Architectural copyright is an oft-ignored field of copyright law, if not for the lack of cases, then for the uncomfortable position it occupies on the spectrum of better-understood copyright categories like art, music, and film. Yet the study of the history and subsequent case law behind the Architectural Works Copyright Protection Act of 1990 (enacted as part of the Berne Convention) proves fruitful because of architecture’s vexed status as an object of both utilitarian functions and aesthetic aspirations, rendering it uncomfortably between the realms of patent and copyright law. This article explores the legislative history behind the Act and Congress’ reliance on one specific architect’s narrative of a postmodern architecture of symbolic appendages, resulting in a “functionally determined” standard that resurrects the tricky conceptual separability test. Turning to current case law, this article examines how the “functionally determined” test has been both applied and drastically expanded to encompass any and all “externally determined” elements (like those dictated by zoning laws or market demands), resulting in the thinnest of copyright protection for architectural works. Alternatively, the article will argue that a broader “total concept and feel” test like that applied in the high-profile 2005 case Shine v. Childs is a better standard that takes into account current developments in architectural theory that use external factors as the starting point for highly fanciful, creative works. However, I posit a reworked, two-step total concept and feel test that would address the underlying fear of monopolies on useful forms while promoting overall progress in the field.
Keywords: architecture, copyright, art law, separability, patent
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