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May 8,May 2006 ISUPPLEMENT PTO LEGAL TIMES AA TTaleale ofof New York case raises copyright on buildings. TWOTWO By Matthew W. Clanton TOWERSTOWERS ince a twisting, tapering model was unveiled in architecture as a category of works that could be protected. late 2003, the design for the tallest building on the The only clearly recognized, architecturally relevant copy- SWorld Trade Center site has turned heads and right applied to technical drawings, plans, blueprints, and raised voices. Critics have objected on substantive, political, three-dimensional models, which could (and still can) be pro- and symbolic grounds to the proposed Freedom Tower. tected as pictorial, graphic, and sculptural (PGS) works. But no American debate is really complete without some However, protecting architecture this way carries distinct legal controversy. A young architect and a venerable archi- restrictions. The PGS copyright extends only to those aspects tectural firm have obliged. of individual drawings, plans, models, etc., that can be iden- In Shine v. Childs, the architect Thomas Shine has alleged tified separately from, and are capable of existing indepen- that the original design for the Freedom Tower, produced by dently from, the utilitarian aspects of the work. The underly- David Childs of Skidmore, Owings & Merrill, was copied from ing architectural design is generally not protectable because a series of designs that Shine created while pursuing his mas- it cannot be separated from its utilitarian purpose. While the ter’s degree. unauthorized reproduction of the PGS work itself may be In a move unexpected by many in architectural circles, the stopped, the PGS copyright owner cannot prevent anyone U.S. District Court for the Southern District of New York else from constructing a building from those plans. refused to dismiss the case this past August. That means that The AWCPA, passed in 1990 after the United States even as the plans for the final building have been altered, became a party to the Berne Convention for the Protection Shine and Childs are heading to trial over the first design. of Literary and Artistic Works, shifted the legal landscape. For the rest of us, the court's decision offers rare judicial The new statute amended the Copyright Act to specifically guidance on the scope of protection afforded by the Archi- add “architectural works" as a new category of copyrightable tectural Works Copyright Protection Act of 1990 (AWCPA). material. It also extended protection to both unconstructed plans and constructed designs, allowing designs embodied New Legal Grounds within architectural works to be protected despite their over- Before 1990, the Copyright Act did not expressly mention all utilitarian purpose. © 2006 ALM Properties Inc. All rights reserved. This article is reprinted with permission from Legal Times (1-800-933-4317 • [email protected] • www.legaltimes.com). The salient requirement is that an architectural work must Shine’s first design, dubbed Shine ‘99, was a three-dimen- constitute a “design of a building." It must (a) relate to the sional cardboard model that consisted of (1) two sides that design of a stationary structure intended for human occupan- tapered straight toward the top, creating a roughly triangular cy, and (b) be embodied in a tangible medium of expression shape; (2) two other sides that twisted as they rose, and one such as a constructed building, architectural plans, or draw- of which featured four graded setbacks; and (3) a top that ings. Protection extends to the overall form of the design as formed a parallelogram. The work did not include any infor- well as the arrangement and composition of spaces and ele- mation on the number of floors, the floor-to-floor height, the ments within the design. overall height, or the mode of entering the building at ground level. There was no information as to underlying Cracks in the Facade construction. Apart from the single model, no schematic The AWCPA is not without its own limitations. Standard drawings or other documents existed. configurations of spaces and standard features, such as win- Shine’s second design, dubbed Olympic Tower, was much dows and doors, are not protectable. Elements that are func- more detailed. The building twisted on all four sides; its tionally required to support the design itself (from an engi- internal diamond-shaped grid was reflected in its external neering or physics perspective) are not protectable. And “skin." The design materials included (1) two models of the because the work must relate to a “permanent" building, tower, one of the internal supports and one of the external designs for mobile homes and houseboats do not qualify. view; (2) elevation sketches displaying the building's core at Further, the exclusive rights normally accorded to a copy- different levels; (3) a photomontage of what the building right owner—such as the right to adapt, modify, or control might look like against a New York City backdrop; and (4) a the public display of a work—yield to the practical realities sketch of the exterior design, similar to Shine '99. and public nature of buildings. After construction, a building In December 1999, Shine formally presented both designs owner need not seek the copyright owner's approval to make to a panel of experts for evaluation and criticism. Childs, changes or to destroy the building entirely. The copyright himself a graduate of the Yale School of Architecture, served owner also cannot prevent others from taking, making, dis- on the panel. Shine alleges that Childs offered glowing tributing, or displaying photos, paintings, or other pictorial praise. Indeed, Childs was allegedly so impressed that he representations if the building is located in or is ordinarily invited Shine to visit Skidmore, Owings after graduation. visible from a public place. About three years later, Childs began work on the design In other ways, the AWCPA can be difficult to apply. The for Freedom Tower. His design was shown to the public in fact that copyright only extends to the expression of an idea, December 2003. Shine federally registered the copyrights on rather than the idea itself, does not comport well with the art his designs in the spring and summer of 2004, and sued for of architecture. The highly collaborative process for designing infringement that November. buildings produces multiple variations on the work. The design invariably becomes more complete as it progresses Deconstructing from concept to schematic, to design development, and then the Case to the final documents used to construct a building. It is diffi- Shine contended there are substantial similarities between cult to determine at what point a concept is complete enough each of his designs and Child’s design. Specifically, he to qualify as the actual expression of a building design. claimed that both Shine '99 and Freedom Tower had two Moreover, architectural designs are often inspired by pre- straight, roughly triangular, opposing facades, with two existing works. Except for cases involving the overt stealing twisting facades joining them, all tapering to the top. He also of plans, copying has been somewhat of an accepted prac- claimed that Freedom Tower had an identical internal grid tice—at least prior to Shine v. Childs. This, perhaps, explains and a “strikingly similar" facade to Olympic Tower. why there is little case law construing the AWCPA. The defendants presented three primary arguments for dis- The court's decision in Shine v. Childs touches on many of missing the suit. They argued that neither Shine '99 nor these issues. Olympic Tower qualified as an architectural work under the AWCPA because both designs were still too preliminary. They The Two Towers argued that both designs were unoriginal and those aspects The facts of the case are relatively straightforward. Thomas that arguably were original were functionally required. And Shine claims that David Childs and his architectural firm, they insisted that they did not copy Shine '99 or Olympic Skidmore, Owings & Merrill, copied Shine's work without Tower and that Freedom Tower was not substantially similar permission or authorization when they produced their to either. Freedom Tower design to replace the World Trade Center. The court rejected nearly all of these arguments. The In the late 1990s, Shine, who was then pursuing a master’s defendants did score a victory on Shine '99 when the court degree, created two designs for a course at the Yale School of held that it qualified for protection under the AWCPA but Architecture. The object of the course was to design a hypo- was not “substantially similar" to Freedom Tower. But, more thetical New York City skyscraper to be built for the 2012 important, the court held there were genuine issues of mater- Olympic Games. ial fact as to whether Freedom Tower infringed on Olympic © 2006 ALM Properties Inc. All rights reserved. This article is reprinted with permission from Legal Times (1-800-933-4317 • [email protected] • www.legaltimes.com). Tower. And the court made four key observations on the alleged infringement), plus any nonduplicative profits made scope of copyright in architectural works. by Skidmore, Owings off the design. First, in perhaps the most surprising aspect of the ruling, Unfortunately for Shine, the suspect Freedom Tower design the court held that AWCPA protection may potentially extend has been scrapped due to security concerns and replaced with to those works that fall within the conceptual phase of the another Child design that, by all accounts, is not implicated architectural process. While acknowledging the traditional in the suit. Shine’s damages thus appear to be nominal or, at requirement that copyright protects only expressions of least, very speculative. ideas, the court nonetheless held that a design need not be Had Shine registered his designs, he would have been eli- especially detailed or complete in its expression.

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