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Cheryl Terio, Esg. Page 2 construction of a building based on copyrighted plans did not constitute copyright infringement of the plans"). In my opinion, as explained below and in my article at 37 S.C. L. Rev. 393 (1986), protection only against reproduction of plans in the form of another set of plans is insufficient. Architects also need and should have protection against unauthorized use of their plans to construct a building. Explicit recognition is necessary and the AIA's proposed addition to section 113 of the Act affords such protection.

Since plans and blueprints are meant to be used to construct the building they portray, architects are necessarily concerned about unauthorized use of those plans as well as with the copying of those plans. 1 M. Nimmer, Nimmer of Copyright, S 2.08[D] 12). Architectural plans, blueprints and models are analogous to an artist's sketches for full-sized canvas or the drawings and scale models a sculptor uses to execute a large statue. Their rights are violated when another person uses those drawings and models to create substantially similar paintings or statues, see, e.g., Mazer v. Stein, 347_0.s. 201 (1954)(infringement of statuettes used as lamp bases); Ideal Toy v. Kenner, 443 F. Supp. 291 (S.D.N.Y. 1977)(dolls based on copyrighted cartoon characters held to infringe), and, by analogy, it seems that an architect's rights in his blueprints would be infringed by their unauthorized use to construct a building. Use of the plans to construct the building is simply copying or reproducing the plans in a different medium. If the architect has authorized that use of his protected work then there is no infringement. On the other hand, if the use of plans to construct is unauthorized then the user should be liable for infringement. "The fact that a work in one medium has been copied in another medium does not render it any less a 'copy.'" 2 M. Nimmer, S 8.01(B). Furthermore, the unauthorized use of plans may be more damaging to an architect's economic interests than the unauthorized reproduction of the plans themselves. Id. S 2.081D); Artistic Advance and the Legal Protection of Architectural Works, 70 Cornell L. Rev. 81, 95 (1984). If the unauthorized building or other use of copyrighted plans occurs, then a significant part of the market for the plans is destroyed and the architect's copyright is of little value.

Despite the obvious importance of the right to control use of copyrighted plans and the fact that this right is analogous to rights enjoyed by the creators of other categories of copyrighted works, some courts and commentators have said that the copyright on plans and blueprints does not include a right to control use. See 1 M. Nimmer, $ 2.081D) (discussing an architect's rights when a contractor obtains a set of plans and uses them without permission and without making a two-dimensional reproduction); Schuchart & Assocs. v. Solo Serve Corp., 540 F. Supp. 928, 941 (W.D. Tex. 1982). One of the 34 studies prepared in the late 1950s and early 1960s by the copyright office as groundwork for a report on the

B. Cheryl Terio, Esq.
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revision of the 1909 Act states that it is highly doubtful that copyright in plans protects against unauthorized use. Study No. 27 the copyright Law Revision, copyright in Architectural Works 69 (1961) (reprinted in l Studies on Copyright (1963)). Thus, there is considerable uncertainty today whether the unauthorized use of plans to construct a building constitutes infringement. See Cornell Note, supra at 84-85 (cases hold that copyright in plans does not grant right to build from plans).

Many of the cases which have held that the copyright on plans does not protect against unauthorized use to build rely on the venerable case of Baker v. Selden, 101 U.S. 99 (1879). Baker is often cited for the settled principle, now codified at section 102(b), that copyright does not extend to ideas, systems, facts or concepts. However, the Court's rambling opinion has also been cited for the proposition that there is a distinction between copying for explanation and copying for use; the former infringes, the latter does not. That interpretation extends Baker too far. The distinction between copying for explanation and copying for use is an awkward one, without much substance, and it has not been reviewed by the Supreme Court for over a century. See Apple Computer v. Franklin Computer, 714 F.2d 1240, 1251-53 (30 cir. 1983). In Baker the Supreme Court was responding to Selden's contention that his copyright gave him an exclusive right to use the bookkeeping system and forms described in his book. Since the Court was concerned that the copyright monopoly might be construed to grant Selden an exclusive right to the use of that system, it held that Selden's copyright could not protect the art described in his work. Therefore, according to the late Professor Nimmer, the rule established by Baker should simply mean that copyright does not extend to the ideas, concepts and systems described in a protected work authorship. 1 M. Nimmer, SS 2.181C) and (D). The Supreme Court has limited Baker's holding in that way and so has the Court of Appeals for the Third Circuit. See Mazer v. Stein, 347 U.S. 201, 217 (1954); Apple Computer v. Franklin Computer, 714 F.2d 1240, 1251-53 (3d Cir. 1983).

Accordingly, the Baker rule, as applied to architectural works, means that an architect has no exclusive rights to the design ideas, concepts and methods of construction disclosed in his copyrighted plans. This basic limitation on copyright does not, however, restrict an architect's exclusive right to control reproduction of his protected plans, and, as explained above, those plans are reproduced when they are copied into another set of plans and when they are used to construct the building they portray. The Copyright Act proscribes reproduction without qualification; it does not immunize use. Apple Computer, 714 F.2d at 1251-53; 1 M. Nimmer S 2.181C)12). Thus, the proposed amendment's recognition of the architect's right to control use of plans will not offend the principle announced over a century ago in Baker v. Selden that copyright does not extend to ideas, systems and

Cheryl Terio, Esq.
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concepts. Furthermore, it will eliminate the uncertainty which now exists over whether or not the copyright on plans includes the right to prevent or recover for an unauthorized construction of the building depicted in those plans.

I hope that this letter adequately explains my views about the importance of the AIA's proposed amendment to section 113 of the Copyright Act and about the need for such an explicit recognition of an architect's right to control the use of his copyrighted plans. Please do not hesitate to call me if I can be of further assistance.

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Recognizing the need for a "minimalist approach" in the amendment of U.S.
copyright law in order to comply with the Berne Convention, The American
Institute of Architects would like to offer an amendment with regard to
architecture which would apply only to 17 U.S.C. $113.

The exclusive right of the owner of a
copyright in an architectural drawing, plan,
print, sketch, diagram or model relating to a
building or structure under $106 (1) and (2)
includes the right to prevent an unauthorized
construction of the building or structure depicted.

This language accomplishes three purposes. It enables the United States to say
that architecture is expressly addressed in our law, It also gives
architectural drawings a more complete and pragmatic protection, consistent with
the Berne philosophy. And it avoids the "can of worms" involved in having the
copyright apply to the structure itself.

Architects do have concerns about the implications of a copyright in the
structure itself--not only as potential plaintiffs but as potential defendants
as well. In searching for a minimalist approach, therefore, we would support
the omission of copyright protection for buildings and structures from the
impending legislation while retaining language protecting drawings. it would
seem prudent to include some express mention of architecture given the Berne
definition that twice affirms its inclusion. This amendment confirms that
inclusion in U.S. law.

Our testimony before the House Judiciary Subcommittee on Courts, Civil Liberties
and the Administration of Justice was premised on the need to include
architectural works for Berne compi iance, as indicated by The Ad Hoc Working
Group on U.S. Adherence to the Berne Convention and others. The comments of our
witness, David Lawson, FAIA, therefore, only addressed the provisions in the

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proposed laws that affect architectural works. We were pleased that our concerns about these provisions seemed to be understood. Subsequent testimony before your Subcommittee as well as your own testimony before the Subcommittee on Patents, Trademarks and Copyrights of the Senate Committee on the Judiciary, however, has suggested that the current protection of architectural drawings found in the case law may neet Berne standards sufficiently. Because of the lack of consensus on this issue, we recommend stepping back from the full copyright protection in H.R. 1623, but not abandoning architecture entirely in these amendments.

Robert Gorman, Professor of Law at the University of Pennsylvania and Jon Baumgarten of Proskaur Rose Goetz and Mendelsohn have been very helpful in formulating this "minimalist approach." They have very kindly offered to talk with you or your staff about it. They do not, of course, in any way represent the American Institute of Architects.

As the national professional organization representing America's architects, we appreciate your interest in architect's copyright protection--an issue of increasing interest to the profession. I hope this suggestion will be useful to you and your subcommittee as you are pondering the complexities of this issue. We will be happy to discuss this proposal with you or your staff.

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