Architectural Copyright for Artists

I want to talk today about a rather obscure but (I think) interesting and important legal concept: architectural copyright.  My dad is an architect and I gained my appreciation of architecture from him and the myriad buildings he took me to see while I was growing up.  Historically, architectural works were not protected by copyright.  Neither the plans and drawings nor the actual buildings were copyrightable.  Architecture became copyrightable in the U.S. in two stages: first, when the 1976 Copyright Act included architectural plans and drawings, second, when Congress passed the Architectural Works Copyright Protection Act in 1990, which gave protection to the buildings themselves.  So this article really only applies to relatively new buildings; buildings created before 1 December 1990 are not protected.  I’m going to start by discussing what is and what is not protected by architectural copyright and then I will discuss how such copyrights can be infringed.

 

Scope of Protection

As with every other copyrightable work, architectural works must be 1) original, 2) works of authorship, 3) fixed in a tangible medium to get copyright protection.  The architect or architectural firm that designs a given building owns the architectural copyright in that building, not the owner of the actual building.

Not every kind of construction is eligible for architectural copyright protection.  Under 37 C.F.R. 202.11, only “buildings” are copyrightable constructions.  The regulation defines buildings as “humanly habitable [and occupiable] structures … both permanent and stationary, such as houses and office buildings … including but not limited to churches, museums, gazebos, and garden pavilions.”  However, the regulation then specifically excludes structures other than buildings such as “bridges, cloverleafs, dams, walkways, tents, recreational vehicles, mobile homes, and boats.”  This means that the more similar a given structure is to one of the listed buildings, the more likely a court would be to find that the structure is a building.  The more similar a structure is to the “other” list, the less likely a court would be to find that the structure is a building.

The regulation also excludes standard building features such as windows, doorways, standard configurations of space, and other “staple building components.”  This exclusion seems targeted at the “threshold of originality” that copyright requires.  The Eleventh Circuit Court of Appeals discussed in Intervest Const. Inc. v. Canterbury Estate Homes, how architectural works are much like compilation works.  554 F.3d 914, 919 (2008).  A compilation of individually uncopyrightable facts is copyrightable when the selection and expression of those facts cross expresses originality.  For instance, the facts in a baseball card database entry are not copyrightable.  However, when the database is organized in an original way, the database as a whole is then copyrightable.  How original does it have to be to cross the threshold?  Not very.  A mechanical organization, like alphabetically, by number, or by date, is not original, but listing the cards in order of which is most valuable would be original because the compiler chooses what to consider as valuable.  A square, four walled building with one room, door, and dual-pitched roof is not copyrightable.  However, that building could become copyrightable when the addition of more, individually uncopyrightable elements gives the building a unique, original design.

I should note that when a person creates an architectural drawing or plan, that person likely has created two copyrights: one in the drawing and another in the actual building. 

Lastly, 17 U.S.C § 120 (b) allows building owners to alter or destroy a copyrighted building without having to worry about infringing on the copyright by making a derivative work.

 

Architectural Copyright Infringement

It should be pretty clear that copying the drawings or the actual building constitutes copyright infringement.  Indeed, most architectural copyright litigation concerns those issues and how “substantially similar” one building is to another.  However, certain photographs or other painted or pictorial representation may also infringe on the copyright in the building.  Rather than repeat “photographs or other painted or pictorial representation” continuously, I’m going to refer only to photographs in the following paragraphs but be aware that I’m using that as a shorthand for any kind of derivative representation of a building that may constitute copyright infringement.

Before you get too worried about photographing buildings, let me say photographing a building from a public place will not infringe on an architectural copyright (although it would in some European countries).  However, under 17 U.S.C. § 120 (a), pictorial representations of a building “located in, or ordinarily visible from a public place” are expressly permitted.  This statute has not yet been the subject of much litigation so the exact extent of its permission is something of an unknown and I am being, admittedly, a little speculative in this section.  There seem to be two instances to be especially careful of, though.

The first, and more obvious, is where a person takes a photograph of a secluded building, not normally visible from a public place.  It’s not clear how secluded the building would have to be, but it’s a safe bet that if photograph a building from a place where you would otherwise have to trespass to shoot the photo, your photo would infringe on the copyright.  This case at least conforms to a strict interpretation of the law, where the building is not publicly visible.  For such a photograph to infringe on the architectural copyright, the photo must go further than merely depicting the building exists.  The photo must copy the original elements of architectural design for any infringement claim to succeed.

The second instance is where a person photographs the non-publicly viewable interior of a building.  The statute does not distinguish between interiors and exteriors and, taken literally, even private areas of publicly visible buildings would not be copyright protected from photography.  Dictum from Leicester v. Warner Brothers seems to indicate that if any portion of a building is not protected from photography by copyright, then no portion of the building is protected.  232 F.3d 1212, 1220 (9th Cir., 2000).  However, that case looked at two publicly visible portions of a single building, so it is possible that a court faced with a private/public building issue would decide differently. 

So what kind of interior photographs would infringe?  Well, the important thing to remember is that it is the design that is protected and the design is a unique compilation of elements.  The more a photograph shows the design of the building, i.e., the more unique the arrangement of those elements within the photo, the more likely the photo infringes.  Photographing a wall or a door alone might be ok but if your photo captures a building’s unique layout, sightlines, or other overall design, it likely infringes. 

What is a photographer to do then?  Well, the best thing you can do is get permission in writing from the copyright holder, usually the architect or architectural firm.  This is common in some European countries that protect even publicly visible buildings, but is not yet common in the US, possibly because of the relative newness of this area of law combined with the fact that architects are more concerned with other people ripping off the architect’s building designs to construct infringing buildings.  If you don’t have permission, then you have to make sure any photos you take of a copyrighted building either do not infringe by showing the design or that you have a suitable infringement defense, like fair use.

As I said above, there have not been many cases where a photographer or other artist has been sued for architectural copyright infringement, but it is better to be aware of this area of law ahead of time than to get slapped with a law suit completely unaware.  Good luck out there and happy photographing!