Prepared by Christine Chilingerian (Legal Intern)
Candidate for J.D., 2012
Northeastern University School of Law

The field of architecture lies at the intersection of the sciences and the arts, employing a combination of engineering and artistry, functionality and design.  Traditionally, these opposing disciplines have relied on distinct regimes of intellectual property protection.  Yet, the cross-disciplinary nature of architecture causes ambiguity, falling somewhere in between the protection framework for patent and copyright.[1]  The following article provides an overview of the law applying intellectual property concepts to architecture, and gives some insight on the issue of protecting architectural works.

Students of architecture study the work of others within the discipline, and combine this knowledge with their own ideas and aesthetic to design and construct original works.[2]  In light of this ebb and flow of ideas and inspiration, students often wonder if it is possible for contemporary architects to protect their functional innovations, original works and creative designs – it is.  Overwhelmingly, protection for architectural works is accomplished with the use of copyright.

Under the Architectural Works Copyright Protection Act of 1990 (AWCPA), copyright protection extends specifically to “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.”[3]  As long as the building uses a design that is original and not required for functionality, copyright protection will cover the work.[4]

Copyright protection attaches automatically once the architect has captured the work in a physical medium, such as by drawing a sketch or drafting blueprints.[5]  Copyright generally gives the owner the exclusive right to reproduce the work, distribute copies, and create derivative works.[6]  The challenge lies in determining to what extent the fusion of individual, standard elements - such as a door or a window - results in protectable artistic expression.[7]  The requirement that a building’s design be original is not a high bar.  There is no requirement for ingenuity or aesthetic merit; the originality requisite is routinely fulfilled by the integration of unoriginal elements in new and creative ways.[8]

Before AWCPA, there was little protection available for works serving to enhance function and efficiency, but more flexibility exists under the law today, allowing some portion of design to also be functional.[9]  Certain categories of work have always been excluded from copyright protection, however.  These include any construction for which design is dictated by pragmatic or technical requisites of engineering and, above all, work which does not encompass or evince an architect’s creative expression.[10]  For these reasons, highways, bridges, canals, or the unenclosed organization of space, such as parks, golf courses, and gardens, are all excluded.[11]  It is also worth noting the limited scope of copyright protection with respect to architectural works – an architect has no recourse for either the destruction or alteration of their work, and also cannot prevent distribution of two-dimensional reproductions of the work, such as photographs.[12]

Infinite combinations of standard individual elements that make up architectural “vocabulary” (for example, a bay window or a stone wall) are possible.[13]  Although these elements cannot be individually protected under copyright law[14], by filing a design patent, there can be protection available for original architectural elements as “ornamental” works.[15]  In general, design patents offer a more limited scope of protection than copyright; they are harder to qualify for and give the holder fewer rights.  Furthermore, the protection offered by design patents is even further limited, lasting merely 14 years from the date of filing.[16]

 


[1] Raphael Winick, Copyright Protection for Architecture after the Architectural Works Copyright Protection Act of 1990, 41 Duke L.J. 1598, 1619 (1992).

[2] Raphael Winick, Copyright Protection for Architecture after the Architectural Works Copyright Protection Act of 1990, 41 Duke L.J. 1598, 1604 (1992).

[3] Richard M. Russell, Copyright in Architectural Drawings and Works, Massachusetts Law Review, 92 Mass. L. Rev. 25, (2009).

[4] Raphael Winick, Copyright Protection for Architecture after the Architectural Works Copyright Protection Act of 1990, 41 Duke L.J. 1598, 1616 (1992).

[5] Richard M. Russell, Copyright in Architectural Drawings and Works, Massachusetts Law Review, 92 Mass. L. Rev. 25, 26 (2009).

[6] Richard M. Russell, Copyright in Architectural Drawings and Works, Massachusetts Law Review, 92 Mass. L. Rev. 25, 26 (2009).

[7] Raphael Winick, Copyright Protection for Architecture after the Architectural Works Copyright Protection Act of 1990, 41 Duke L.J. 1598, 1606 (1992).

[8] Raphael Winick, Copyright Protection for Architecture after the Architectural Works Copyright Protection Act of 1990, 41 Duke L.J. 1598, 1616 (1992).

[9] Raphael Winick, Copyright Protection for Architecture after the Architectural Works Copyright Protection Act of 1990, 41 Duke L.J. 1598, 1610 (1992).

[10] Raphael Winick, Copyright Protection for Architecture after the Architectural Works Copyright Protection Act of 1990, 41 Duke L.J. 1598, 1620 (1992).

[11] Raphael Winick, Copyright Protection for Architecture after the Architectural Works Copyright Protection Act of 1990, 41 Duke L.J. 1598, 1614-15 (1992).

[12] Raphael Winick, Copyright Protection for Architecture after the Architectural Works Copyright Protection Act of 1990, 41 Duke L.J. 1598, 1622 (1992).

[13] Raphael Winick, Copyright Protection for Architecture after the Architectural Works Copyright Protection Act of 1990, 41 Duke L.J. 1598, 1604 (1992).

[14] Clark Proffitt, Poetry or Production: Functionality in the Architectural Works Copyright Protection Act, 39 Arizona State L.J. 1263, 1280-81 (2007).

[15] Raphael Winick, Copyright Protection for Architecture after the Architectural Works Copyright Protection Act of 1990, 41 Duke L.J. 1598, 1614 (1992).

[16] Raphael Winick, Copyright Protection for Architecture after the Architectural Works Copyright Protection Act of 1990, 41 Duke L.J. 1598, 1619 (1992).