THE REPORT OF THE REGISTER OF COPYRIGHTS ON WORKS OF ARCHITECTURE U.S. Copyright Office Library of Congress Washington, D. C. 19 June 1989 Library of Congress Cataloging-in-Publication Data Copyright in works of architecture. 1. Copyright--Architecture--United States. I. Library of Congress. Copyright Office. KF3065.A83 1989­346.7304'82­89-600213 ISBN 0-8444-0653-8­347.306482 The Register of Copyrights of the United States of America Library of Congress June 19, 1989 Department 17 Washington, D.C. 20540 (202) 707-8350 Chairman Robert W. Kastenmeier Subcommittee on Courts, Intellectual Property and the Administration of Justice House of Representatives Washington, D.C. 20515 Dear Chairman Kastenmeier: I am pleased to submit to you my report on copyright and works of architecture. As you requested in your letter of April 27, 1988, I have conducted a general inquiry into the current nature and scope of protection for works of architecture, whether existing protection is adequate to serve as an incentive for the creation of new works of architecture, and the effect increased protection would have on the housing industry and consumers. In response to a Notice of Inquiry published in the Federal Register, inviting the public to comment on a broad range of issues raised by protection for works of architecture, we received written submissions from ten individuals and organizations, which we have published in the Appendix to the report. In the report, I review history of architecture as an art form, the practices on ownership of rights in the architectural profession, caselaw in the United States on protection for works of architecture and works relative to architecture, the legislative history in the United States on protection for works of architecture, protection for works of architec­ ture under the Berne Convention and under the laws of Berne members countries, and, finally, analyze the arguments favoring and opposing protection for works of architecture under our copyright laws, as well for increased copyright protection for architectural plans and specification. information I would be pleased to respond to any requests for further Sincerely, Ralph Oman Register of­Copyrights ACKNOWLEDGMENTS I am grateful to many individuals and organizations in the architectural profession and other affected industries for their responsive­ ness and cooperation in supplying information for this report. I refer particularly to the American Institute of Architects and the Frank Lloyd Wright Foundation. As with other Copyright Office reports, the Report of the Register of Copyrights on Works of Architecture results from the contributions of many staff who perform such diverse functions as research, writing, typing, reviewing, designing and printing. Although it is not possible to name all of these contributors, I acknowledge the fact and significance of their efforts. I would, however, like to make special mention of the efforts of William F. Patry, Esq., Policy Planning Advisor to the Register of Copyrights, who shouldered the laboring oar in preparing the initial draft, as well as Ruth Goddard for her assistance in typing the final version of the report, Alicia Byers, Guy Echols, and Sandy Jones for their diligent proofreading efforts, and Sandra Brown, Carol Duling, and Cynthia White for their invaluable secretarial assistance in typing earlier versions of the report. Ralph Oman Register of Copyrights PREFACE At the outset, I welcomed this study as a non-controversial and edifying assignment, focused on a single, specific form of creativity and occurring in an atmosphere generally free of intense commercial conflicts-­ conflicts that have made the study of many other copyright questions volatile and confrontational. In the final reckoning, however, I know of no other issue to arise in the Copyright Office that has engendered such deep and bitterly fought professional disagreements. Instead of our usual dainty and refined cerebral discourse, we had robust, knock-down-drag-out fights, and in the last act I wound up with more bodies on the floor around me than Macbeth. These highly technical disagreements have left their mark on the study, which explores in detail the legislative history of the 1976 Copyright Act, foreign and domestic law regarding architectural works, and the application of the Berne Convention to these works. In these introduc­ tory remarks, I want to cut through the varied materials developed in the study and highlight the central issues as directly as possible. I also want to lay out policy choices Congress will confront as it weighs haw best to protect architectural works. We cannot examine copyright protection of architectural works in a vacuum. We must face head-on the central issue: did Congress intend architectural works to be treated in all cases as useful articles, or did Congress leave room in the law for the protection of same architectural works as works of art perhaps as a subset of sculptural works. To answer these questions, we must read the tea leaves of the legislative history and try to determine where Congress drew lines that allow full copyright protection of works of art (pictorial, graphic and sculptural works) but limit the availability of such protection to useful articles. Both works of art and articles of industry contain aesthetic features, often reflecting extremely high levels of personal creativity. But Congress chose not to protect under copyright the aesthetic appearance of useful articles. That would be reserved to design protection -- a shorter and more limited monopoly interest than copyright. With the decision to drop Title II of the 1976 Copyright Revision Bill, which would have created a comprehensive system of design protection, Congress faced the daunting task of creating rules that would allow the Copyright Office and the courts to identify the protectible artistic elements of useful articles, without opening the floodgates for massive use of copyright protection for the industrial arts. To a large degree, the rules Congress fashioned built upon prior case law and the past practices of the Copyright Office. These rules, however, are exceptionally difficult to apply and invariably generate controversy. They involve making determinations as to whether a work seeking copyright protection is, "intrinsically" a "us eful article", and, if so, whether it has pictorial, graphic, or sculptural features that are capable of being "identified separately from, and are capable of existing independently of, the utilitarian aspects of the article." And in determining whether separability can be made, the legislative history states that such "separability" can be either physical or "conceptual." Congress regarded architectural works as "a special situation," but made it clear that the rules referred to above applied to architectural works. In short, Congress gave little if any specific guidance on haw architectural works were "special" and what that meant in respect to application of the tests of utility and separability. In the course of this study, it became apparent to me that the copyrightability of architectural works -- particularly in the context of the copyright registration process -- turned on the application of the same set of rules that we apply to any attractively formed articles of industry. In order to avoid protection of the mere shape of clearly uncopyrightable articles (such as electric shavers, bicycle racks, and street lights), the Copyright Office has required a relatively high, or relatively clear, degree of separability between the utilitarian function of an article and its pictorial, graphic, or sculptural elements. Over time, these practices have hardened to deny registrability to the overall shape of any article with a useful function, regardless of whether or not utility is the predominant characteristic of the work. These practices effectively require that the separable feature be, in its awn right, a fully realized work of pictorial, graphic, or sculptural author­ ship. An inevitable conflict arises between denial that the "shape" of any useful article can be a work of art and the protectibility of non-represen­ tational sculptural expression. Our study indicates that evolving notions of conceptual separabil­ ity, or of what constitutes an intrinsically useful article, could at some point accord protection to the overall shape of at least some architectural works as sculptural works. The requirements of the Berne Convention regarding works of architecture do not obligate us to protect buildings per se. So, evolution of the law along lines suggested in part of this study could prove the judgment of Congress (in leaving the matter to the courts applying the present law) correct respecting compatibility with Berne. But such development is not only speculative, it may be improb­ able, for it gives too little weight to the real burden of history under which the protection of architectural works in the United States labors. Rightly or wrongly, whether laudably faithful to the law, or displaying a regrettable lack of imagination and insight, U.S. courts have largely declined to protect architectural works as works of art. Admittedly, they have done so principally before the enactment of the 1976 Copyright Act. And they have ruled with reference to conventional housing and modest commercial buildings -- structures that might have a very hard time acquiring copyright protection in many Berne states with well-developed regimes protecting architectural works as works of art. The real tests of U.S. law are yet to come, in regard to copyright for monumental architec­ tural works, works which society at large regards as artistic statements, works with such a self-evident, unmistakable stamp of artistic individuality that the useful features of the structure are fundamentally tertiary to the real nature of the work. The role of the Copyright Office regarding determinations of the copyrightability of architectural works is of special concern to me. Obviously, the registration practices of the Office reflect our understand­ ing of the law, our reading of Congressional intent, and our interpretation of the rulings of the courts.