COPYRIGHT LAW 2004: CLASS 10

PROFESSOR FISCHER

THE CATHOLIC UNIVERSITY OF AMERICA

FEBRUARY 9, 2006

Wrap-Up: Copyrightability of PGS• Step One –Is it a PGS?

• If Yes, Step Two – Is it a Useful Article?

• If Yes, Step Three – Is it Physically or Conceptually Separable?

• If Yes, Step Four – Is it Sufficiently Original?

• If Yes, Copyrightable!

Baker v. Selden – CB p. 90

• Enigmatic 1879 Supreme Court decision

• Important for scope of copyright protection in architecture and computer programs

Extent of Protection for Useful Articles

• Copyright Act s. 113 has a limitation, inspired by Baker v. Selden, for the reproduction right in pictorial graphic and sculptural works in the context of useful articles. What is this limitation?

TYPEFACE DESIGNS

• To what extent are these copyrightable?

COPYRIGHTABILITY OF ARCHITECTURE

• Seagram Building

(Ludwig Mies van der Rohe and Philip Johnson – 1954-58)

375 Park Avenue (between 52/53d) New York City)

Michael Graves: Portland Public Services Building 1980

Portland Building

COPYRIGHTABILITY OF BLUEPRINTS PRE-1990

ARCHITECTURAL WORKS PRE AWPA AMENDMENTS

• BUILDINGS

• PLANS

Demetriades v. Kaufman, 689 F.Supp. 658 (S.D.N.Y. 1988)

ARCHITECTURAL WORKS COPYRIGHT PROTECTION

ACT OF 1990

• Why?

ARCHITECTURAL WORKS COPYRIGHT PROTECTION

ACT OF 1990• Law amended due to U.S.

ratification of Berne Convention

• Applies to . . .

ARCHITECTURAL WORKS COPYRIGHT PROTECTION

ACT OF 1990• Applies to architectural works created

(substantially constructed) on or after Dec. 1, 1990.

• Also to unconstructed buildings if embodied in unpublished plans or drawings if constructed by Dec 31, 2002

What’s an “Architectural Work”

What’s an “Architectural Work”

• Definition in s. 101? - “the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings. The work includes the overall form as well as the arrangement and composition of spaces and elements in the design, but does not include individual standard features.”

Architectural Works: Analyzing Copyrightability

• How should the Copyright Office or the courts assess copyrightability for an architectural work built on or after 12/1/90?

Is this copyrightable if built after 12/1/90?

2 STEP TEST FOR COPYRIGHTABILITY

• (of architectural works)

• 1. Are there original design elements present - including overall shape, interior architecture?

• 2. If such elements present, are these functionally required? If not, then protectable.

Is a church copyrightable?

Is a bridge copyrightable?

Michael Graves Garden Pavilions: Copyrightable?

WHAT STRUCTURES ARE COVERED?

• House Report (CB p. 230):• Houses, office buildings, malls (not

individual units in malls: must be free-standing)

• Habitable structures, garden structures like gazebos, churches, garden pavilions

• NOT pedestrian walkways, interstate highway bridges, bridges, canals, dams, cloverleafs

Kiosks?

LIMITATIONS

• What other limitations are in ACPA?

LIMITATIONS

• What other limitations are in ACPA?

• 1. State common laws and statutes relating to zoning, historic preservation, building codes

LIMITATIONS

• Right to alter or destroy building (120(b)) – applies to building embodying an architectural work

• Does this apply to pre 1990 structures built from copyrighted plans, like the Superdome?

Another limitation: 120(a)

• The copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place.

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