The Architecture Of Copyright

This summer, Pacific Standard Time's world-class exhibits highlight the architecture that gives Southern California its unique reputation for modern but relaxed style. This series of exhibits, a Getty initiative, titled "Modern Architecture in LA," maps the aspect of Los Angeles architecture that is often overwhelmed by residential structures, instead focusing on infrastructure and urban planning, commercial and civic buildings, and housing experiments, among others. Architecture is an art form, and it is also a distinct practice in and of itself. When considering the relationship between art and architecture, it is interesting to see how these practices are at once similarly and differently protected by the law. The Copyright Act of 1976 and the Berne Convention have all resolved to give architects the protection they deserve. But is this protection enough?

Under the Copyright Act of 1976, the original design of a building is subject to copyright protection if it is fixed in a tangible medium of expression.1 The Act also protects architecture plans, models, and drawings. The extension of protection to drawings and sketches is particularly useful for architects because the works they design are not always executed. Therefore, the protection prevents others from building a structure using that architect's previously-drawn plans or models. Unfortunately, though, the Copyright Act does not prevent anyone from "reverse engineering" a building, such as observing the building constructed from those drawings and subsequently replicating the design in a new drawing or in another building. Additionally, the Act does not prevent the right to make, distribute, publicly display pictures, photographs, or other pictorial representations of the work when a building is ordinarily visible from a public place.2 Intellectual property rights are, in part, intended to promote creativity and innovation by reassuring authors of copyrightable works that the products of their labor will be protected. This "loophole" in the Copyright Act may be seen to stunt innovative architectural works, as architects could fear that their works will be unlawfully replicated.

Fortunately, the Architectural Works Protection Copyright Act of 1990 (AWPCA)—an amendment to the original Copyright Act—extended copyright protection to architectural design itself, eradicating this weakness in copyright law. Under the Act, architectural works are defined as the design of a building as...