Architecture and Dysfunction

Abstract

United States copyright law has long prohibited protection of the functional. The addition of architecture as protected subject matter in 1990 did little to change this fundamental tenet: added begrudgingly by Congress as a necessary condition of the United States’ accession to the Berne Convention, courts quickly began limiting the scope of protection for architectural works by developing a “functionally determined” standard that filtered out design elements dictated by efficiency, necessity, or any other external factors from copyright protection—in language that increasingly echoed similar functionality analyses for “useful articles” in copyright cases involving industrial design (and similar abstraction/filtration/comparison analyses in computer software cases).

Architecture and industrial design have much in common, not because both are fundamentally about aestheticizing the useful, but because both practices have long been engaged in a practice of subverting the very usefulness of the designs they produce—or at least what our expectations of usefulness are—for consumer consumption. Yet despite the long-standing prevalence of dysfunctional designs, they have been little explored in the design law literature: perhaps because it complicates our understanding of what functionality is and what should rightfully be excluded from copyright protection; perhaps because it challenges policy justifications for excluding certain design features as capitalizing on the innate, preexisting human desire for beauty and symmetry; and perhaps because it refutes the notion that architecture or industrial design is fundamentally dual-nature, both functional and nonfunctional. What if it, instead, were only the latter?

This Chapter examines the history of dysfunctional designs in architecture, and argues that current doctrine whittling away the already thin scope of protection granted to architecture by categorically filtering out every design choice responding to some external element (zoning laws, cost, client expectations) fundamentally misses the point. There is, nonetheless, much creative freedom, and choice, that happens within these constraints. In shifting consumer demands towards the ugly, the discomfiting, and the inconvenient, dysfunctional designs do not merely exploit existing consumer preferences—rather, they create them, anew.

Keywords: copyright, architecture, fashion, useful articles, industrial design, design law