A Thin Line Between Artistry and Architecture
The line between artistry and architecture is just as thin as the copyright protection given to architectural drawings according to an opinion denying summary judgment in the case of The Harvester, Inc. v. Rule Joy Trammell + Rubio, LLC, Civil Action No. 3:09cv358 (E.D. Virginia). The technical elements of architectural drawings can sometimes overshadow the artistic and creative elements. Nonetheless, architectural works are a protectable subject matter under The Copyright Act.
The Copyright Act grants exclusive rights to use and to authorize the use of a creative work for (1) reproduction of the work, (2) preparation for derivative works, (3) distribution of copies of the work to the public, (4) performance of the work publicly, and (5) displaying the work publicly. Under Section 102(a)(8) of The Copyright Act, an “architectural work” is the “design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings.” Protection will cover the overall form as well as the arrangement and layout of the various unprotected ‘common elements,’ such as doors, windows, rooms, and other standard features.
The John Marshall Law School in Chicago, Illinois is well known in the intellectual property community for its patent, trademark, and copyright curriculum. Having a similar namesake, The Hotel John Marshall in Richmond, Virginia had its share of copyright issues as the subject of copyright dispute in the Harvestor Case.
The Harvestor Case involved the copyright in architectural drawings for the renovation of The Hotel John Marshall, originally opened in 1929. The architectural firm originally assigned to renovate the hotel obtained copyright in their drawings. Another architectural firm was later assigned to the project and used the previous drawings to make their own architectural plans. The Fourth Circuit determined that copyright protection for architectural works is thin because the overall creative expression reflects a compilation of unprotected common elements uniquely arranged. However, a thin copyright is still a copyright deserving of protection.
One complicated feature of architectural works is that all building designs prior to December 1, 1990 are not subject to protection. Therefore, anyone may incorporate building designs constructed or published before this date into their derivative architectural designs. The problem arises when different individuals claim exclusive rights in derivative works, but appear similar because the works originated from the same pre-December 1, 1990 building design.
A derivative work is a work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship. The standard of originality of a derivative work is low. In Harvestor, the defendant claimed that the plaintiff’s drawings were undeserving of copyright protection because they lacked the requisite level of creativity to separate the drawings from the original work. The court held that the plaintiff did make design choices that were worthy of protection.
The line between artistry and architecture may be thin, but it isn’t so thin that technical drawings and architectural works are viewed as one. Claiming copyright in an architectural work will not also include a claim of copyright in the technical drawings of the work. Therefore, separate applications will need to be filed to protect both of these features.
It is easy to take the art of architecture for granted because we engage in these creative structures on a daily basis. The choice of stone, the shape of the windows, and the arrangement of other features are all specifically coordinated for some intended purpose. If you would like further insight on the art of architecture, visit the Muscarelle Museum of Art at The College of William & Mary between September 18 – October 24, 2010 to see two great exhibitions: Architexture: Photographs by David Brashear and Envelopes: Architects’ Unfinished Experiments with Building “Skins.”
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