Before the enactment of the Architectural Works Copyright Protection Act (AWCPA), United States copyright law did not protect architectural constructs other than non-functional monuments. The AWCPA was enacted on December 1, 1990. This law for the first time gave architects the same broad protection to their works as had been available to authors of other types of works subject to certain limitations. This legislation was therefore a monumental break from the previous 200 years of U.S. copyright law.
The Copyright Act of 1909 was the first major revision of U.S. copyright law with regards to architecture. The Act expanded the categories of subject matter capable of protection to include “drawings or plastic works of a scientific or technical character.” The Copyright Office Regulations relating to the Act explicitly included architectural plans as eligible for copyright protection providing that the strict publication and notice requirements had been followed.
The next major revision came with the Copyright Act of 1976. The categories of subject matter were again expanded to include “technical drawings, diagrams, and models.” Thus, although architects received protection for their sketches, drawings, plans and scale models, architectural works still were not given copyright protection.
The problem for architects is that the value of the drawings is not in simply reproducing the drawings. An architect can publish a book of the plans, but the value of the plans is in their use as a means of conveying the information on how to construct a building. The ultimate product of the architect’s creativity is not protected.
An “architectural work” is defined by 17 U.S.C. § 101 as “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 the standard individual features.”
§ 113(b) generally excludes copyright protection for pictorial, graphic, or sculptural works. Such work must however have an intrinsic utilitarian function and such function should be capable of being identified separately and existing independently from the utilitarian aspect of the article. Architectural plans convey information on how to construct a building and, so, are not useful articles. On the other hand, architectural works are inherently useful articles in that they are inhabitable spaces in which people live, work, and gather. Therefore in cases like these, the courts use the separability test to find out whether the work is eligible for copyright protection. As per this test, the court looks into whether or not the work has an element that separates the unprotectable utilitarian features from the protectable aesthetic features.
§ 120 contain some important exceptions to the AWCPA. Works constructed prior to the date of enactment, December 1, 1990, or works based on plans published prior to that date are not covered by the Act. Moreover as per the AWCPA, only the plans themselves are eligible for copyright protection; the buildings can still be copied. This can be done for example by making measured drawings.
Section 120 further limits the scope of exclusive rights of the copyright holder. A holder of a copyright in an architectural work does not have the right to prevent the “making, distributing, or public display of [pictorial representations] of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place.” This limitation is very important because without this limitation, photographers, film makers, artists, and even tourists might be infringing every time they depicted a copyrighted building in their work.
A further limitation under § 120 gives the owner of a building embodying an architectural work the right to alter, authorize the alteration of, destroy, or authorize the destruction of such a building. This limitation is also important because building owners need to be allowed to adapt architectural works to present or future needs.
However, § 120 contains an important exception. Section 301(b)(4) preserves remedies available under common law and state statutes regarding “State and local landmarks, historic preservation, zoning, or building codes,” relating to architectural works protected under section 102(a)(8). Therefore just as owners of buildings are allowed to modify or destroy buildings to allow for new needs, cities and states may regulate construction within their jurisdictions.
The preservation laws therefore help conserve historically or artistically important landmarks and buildings for future generations. Zoning regulations allow for thoughtful growth by limiting some types of construction to certain areas for economic, aesthetic, and environmental reasons, among others. Building codes insure that homes and other buildings are safe for people to live and work in. These determinations are best made at the local level and § 301 recognizes that.
Authorship of completed architectural works is slightly complicated. As opposed to architectural plans, completion of architectural works requires the involvement of additional parties, including contractors and engineers. Nevertheless, only in unusual relationships will authorship be found in parties other than the architect.
Even though as with other works, authors of architectural works automatically have a copyright in their work, in case of architectural work, registration is necessary to bring an action for infringement. In addition, remedies such as damages and attorney’s fees are unavailable without registration.
The term of protection for an architectural work created as a work for hire on or after December 1, 1990 lasts for 95 years from the date of publication or 120 years from the date of creation of unpublished plans. For an architectural work created on or after the enactment date and not as a work made for hire, the term of protection is life of the author plus 70 years.
The Architectural Works Copyright Protection Act is, for some authors of architectural works, an invaluable tool in protecting their reputation and livelihood. For architects that design highly visible works such as skyscrapers or museums, it is probably not necessary. However, people who invest hundreds of millions of dollars in a building that will be seen by everyone probably want that building to be a one of a kind original.
The AWCPA is valuable to the architect that designs homes and other smaller projects. They are much easier to copy in the first place and the buyer is also not probably interested in buying a one of a kind, particularly since the typical modern subdivision has many copies of several basic designs.
It is well established that both architectural drawings and completed architectural works are entitled to copyright protection under the Federal Copyright Act. Under the Act, the owner of the copyright has exclusive rights to reproduce the copyrighted work and to prepare derivative works based upon the copyrighted work. Generally, copyright protection extends to the author of the work, the architect, unless there is a written agreement to the contrary or the work is a “work for hire.”