Architectural Copyrights: No Need To Pay The Troll Toll

• Published date: 21 September 2021
• Subject Matter: Intellectual Property, Copyright
• Law Firm: Stark & Stark
• Author: Mr Gene Markin

Intellectual property is a right enshrined in our very Constitution, which grants Congress the power "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."¹ Congress has made use of that power by legislating a wide birth of laws defining what is a copyright, how to get one, and what it protects.² Surprising to many lay observers, architectural works are specifically protected copyrights.³

In 1990, Congress passed the Architectural Works Copyright Protection Act (AWCPA) to protect "the design of a building as embodied in any tangible medium of expression, including a building, architectural plans or drawings," including "the overall form as well as the arrangement and composition of spaces and elements in the design," but not including "individual standard features," such as common windows, doors, and other staple building components. Moreover, architectural copyrights do not protect:

• Standard configurations of spaces, such as a square bathroom or one-room cabin.
• Purely functional features of an architectural work, such as innovations in architectural engineering or construction techniques.
• Interior design, such as the selection and placement of furniture, lighting, paint, or similar items.

Architectural works are fairly considered the least protectable on the list of protected works because copyrights do not "extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery," which roughly translates to anything with an intrinsic utilitarian function.⁴

Buildings serve functional purposes often, and while some large buildings such as the Empire State Building or Taipei 101 have distinctive appearances, these are the exception rather than the norm. The types of buildings people interact with most often are residential, and the single-family home market boomed as the COVID-19 pandemic drove people out of cities and into the suburbs.⁵ Experts have claimed that "homebuilders would have to build at least 1.5 million new houses a year for the shortage not to get worse, let alone stabilize."⁶ A demand for housebuilding means a demand for architects, and those architects have a vested interest in protecting their work product. Architects sell their designs to clients ranging from small families looking to build their own home, to large-scale developers building entire communities on empty lots. Copyright protection of these architectural works is intended to ensure architects can design and license their works, but what exactly does a copyright protect?

This question has been gaining attention in recent years, not because architects are trying to stave off unlicensed use of their works, but because other copyright holders are looking to stop architects from licensing out their own works.⁷ Design Basics is an example of what has become known as a "troll," an intellectual...