COPYRIGHT IN ARCHITECTURAL WORKS

I. THE PROBLEM

Architecture has traditionally been considered one of the arts, and the copyright laws of most countries provide specifically for copyright protection of "artistic works of architecture" (i.e., artistic architectural structures) as well as of plans, drawings, or models for architectural structures. In the United States, as will be seen, the protection now afforded to architectural works, particularly as regards "artistic" structures, is somewhat uncertain and may be deemed too narrow. The problem to be considered here is that of the provisions that might be appropriate in a new copyright law for the protection of such works.

"Architectural works" may be understood in a broad sense as referring to two different things: (1) the plans, drawings, or models for an architectural structure (all referred to hereinafter as "plans") and (2) the structure itself. In considering the problem of copyright protection, this distinction between the plans and the structure must be kept in mind. Thus, as regards copying, plans may be reproduced in the form of plans or their features may be reproduced in the form of a structure; and a structure may be reproduced in another structure with or without the use of the plans. Consideration must therefore be given to both the copying of plans (in the form of plans and in the form of a structure) and the copying of a structure (in another structure).

It should also be borne in mind that architectural works (in the form of either plans or structures) embody functional ideas and mechanical processes or methods of construction. It is axiomatic that copyright does not protect the ideas or methods expounded in a work, but protects only the author's "expression" or form of exposition of the ideas or methods.1

II. THE PRESENT LAW IN THE UNITED STATES

A. PROTECTION UNDER THE COMMON LAW

There seems to be no reason to doubt that the "literary property rights" accorded by the common law to authors in regard to their unpublished works generally, extend to the authors of unpublished architectural plans. Thus, the common law would protect such unpublished plans against unauthorized reproduction in the form of plans and perhaps in the form of a structure.*

1 See the landmark case of Baker v. Selden, 101 U.S. 99 (1879). As applied to architectural works, see Larkin v. Pennsylvania R. Co., note 9 infra; Muller v. Triborough Bridge Authority, note 20 infra; and see also the foreign laws, part IV infra.

*See Strauss, Protection of Unpublished Works [Study No. 29 to appear in a later committee print in the present series]; and see 17 U.S.C. § 2.

Kurfiss v. Cowherd, 233 Mo. App. 397, 121 S. W. 2d 282 (1938). For a general discussion, see Katz, Copyright Protection of Architectural Plans, Drawings, and Designs, in the Spring 1954 issue of LAW AND CONTEMPORARY PROBLEMS, 224, 229, Duke University School of Law.

4 Katz, op. cit. note 3 supra.

However, the few reported cases on the question of what constitutes such publication of architectural plans as will terminate common law property rights would seriously limit the practical protection afforded by the common law. In Gendell v. Orr, where the plaintiff had built a porch of his own design on a highway, the court denied his petition to enjoin the defendant from building a similar porch, on the ground that the plaintiff had published his design by building the porch in a public place, thereupon terminating his common law rights. In Wright v. Eisle the court said that the filing of architectural plans in a public office (as required to obtain a building permit) where they were open to public inspection, was such a publication as to terminate common law property rights." In Kurfiss v. Cowherd the plaintiff had opened a house of his design to unrestricted public inspection, and the defendant took measurements of the house and used the plaintiff's plans to construct similar houses. The court held that the plaintiff had published his plans by opening the house to unrestricted public inspection and thereby terminated his common law property rights.*

8

Two other cases, denying common law protection for what the courts considered to be structural methods or ideas, may be noted in passing. In Larkin v. Pennsylvania R. Co. the plaintiff architect alleged that his plans for a hotel building, which he had submitted to the defendant in an unsuccessful effort to obtain a contract to construct it for the defendant, were copied in the plans of another architect used in constructing the building. The court found that the plaintiff's plans were not copied and that no right of the plaintiff was violated by using the same structural methods, which were well known, as those embodied in his plans. In Mackay v. Benjamin Franklin Realty and Holding Co.10 a builder was held not liable for using plans prepared by an architect as an independent contractor, where the architect, without the knowledge of the builder, used "ideas" derived from the plaintiff's plans.

In the view taken in the Gendell, Wright, and Kurfiss decisions," such literary property rights as the common law extends to architectural plans will generally cease when the plans have been used, by or with the consent of their author, for their intended purpose of building a structure. And if, as those decisions hold, the structure were treated as a published work, the common law would not afford any literary property rights in the structure itself.12

13 Phila. 191 (Ct. Common Pleas, Philadelphia, Pa., 1879).

86 App. Div. 356, 83 N. Y. Supp. 887 (1903).

The court also found that the plaintiff architect had transferred any rights he may have had to his client. The decision in Wright v. Eisle was followed, on both points, in the very recent case of Tumey v. Little, 186 N. Y. S. 2d 94 (Sup. Ct. 1959).

233 Mo. App. 397, 121 S. W. 2d 282 (1938). See note in 24 WASH. U. L. Q. 418 (1939).

[Editor's note: In a very recent case decided after the present study had been written, the California District Court of Appeal refused to follow the Wright and Kurfiss decisions, and held that the plaintiff's design for a house was not published by virtue of the filing of the plans in a public office as required to obtain a building permit, or by virtue of the house being open to public view. Copying of the plans by the defendant in building a similar house was held a violation of the plaintiff's property rights under a California statute. Smith v. Paul, 345 P. 2d 546, 123 USPQ 463 (Cal. App. 1959).]

125 Misc. 238, 210 N.Y. Supp. 374 (1925).

10 288 Pa. 207, 135 Atl. 613 (1927). See notes in 75 U. PA. L. REV. 458 (1927); 25 MICH. L. REV. 86 (1927); 40 HARV. L. REV. 1017 (1927).

11 Note that these are decisions of inferior courts. No others in point have been found. These decisions have been criticized as "wrong in principle and destructive in practice of an architect's intellectual property" Katz, op. cit. note 3, supra. See also note in 42 COL. L. REV. 290 (1942).

12 However, the common law may afford some protection against the unauthorized reproduction of structures in circumstances constituting unfair competition, as where the structures have become indentified to the public as those of the original builder. See May v. Bray at note 19 infra.

Whatever may be deemed to constitute publication, protection for published architectural works would be dependent upon the securing of statutory copyright.

B. COPYRIGHT PROTECTION UNDER THE STATUTE

Architectural plans (including drawings and models) may be copyrighted under the present Federal statute. Among the classes of copyrightable works enumerated in section 5 of the statute 13 are "drawings or plastic works of a scientific or technical character." The Regulations of the Copyright Office 14 state:

This class includes published or unpublished two-dimensional and three-dimensional works which have been designed for a scientific or technical use and which contain copyrightable graphic, pictorial, or sculptural material. Works registrable in [this class] include diagrams or models illustrating scientific or technical works or formulating scientific or technical information in linear or plastic form, such as for example: a mechanical drawing, *** an architect's blueprint, *** or an engineering diagram.

The Copyright Office has, in fact, made many registrations of copyright claims in architectural plans.

When published, architectural plans may be copyrighted by registration in the Copyright Office.15 When published, they may be copyrighted by affixing the required notice of copyright on the published copies.16

As to the protection afforded by copyright in architectural plans, section 1(a) of the present statute, which pertains to all classes of copyrighted works, gives the copyright owner of such plans the exclusive right to make and publish copies of the plans. In May v. Bray,18 the unauthorized making and sale by the defendant of copies of the plaintiff's copyrighted architectural drawings was held and infringement and was enjoined, with the defendant being ordered to deliver up all infringing copies for destruction.19 Thus, under section 1(a) copyrighted plans are protected against their unauthorized reproduction in the form of plans.

Whether the copyright in plans protects them also against unauthorized use in the building of a structure seems highly doubtful. In Muller v. Triborough Bridge Authority 20 it was held that a bridge approach (designed to operate as a traffic separator) constructed by the defendant was not copied from the plaintiff's copyrighted drawing of a similar bridge approach. The court said that even assuming that the defendant had used the plaintiff's drawing in designing and constructing its bridge approach, the plaintiff's copyright was not infringed since it did not prevent anyone from using the system of traffic separation set forth in his drawing.

Involved here is the somewhat nebulous line between an author's "expression" of an idea, which is protected by copyright, and the idea itself which is not so protected. The underlying rationale of

13 17 U.S.C. § 5(1).

14 37 C.F.R.202.12(a).

13 17 U.S.C.12; 37 C.F.R. § 202.12(a).

10 17 U.S.C. §§ 10, 19.

17 The exclusive rights specified in § 1(a) are: "To print, reprint, publish, copy, and vend the copyrighted work."

18 Unreported opinion appears in 30 Copyright Office Bull. 435 (S.D. Cal. 1955).

1 The court, finding that the houses constructed by the plaintiff from his plans had come to be known to the public and recognized as the plaintiff's, also enjoined the construction of similar houses by the defendant as unfair competition.

20 43 F. Supp. 298 (S.D.N.Y. 1942).

the Triborough Bridge case seems to be that copyright in a drawing or picture of a nonartistic object of utility does not preclude others from making the three-dimensional object portrayed in the drawing or picture. That case has its counterparts in other situations that are somewhat analogous. Thus, while the copyright in pictures of ladies' garments in a trade catalog has been held to be infringed by copying them as pictures,21 the copyright in such pictures was held not to be infringed by making the garments depicted.22 Likewise, the copyright in a drawing of a dress was held not infringed by making such dresses, though the court said that reproduction of the drawing as such would have been an infringement. The copyright in pictures of furniture in a catalog was held not infringed by making such furniture.24 And the copyright in a design for camouflaging parachutes was held not infringed by the making of parachutes with such a design.25

23

There may be some possibility that in respect to an architectural structure which is itself a "work of art" within the meaning of the statute, the copyright in drawings or models for such a structure will afford protection against their use in building the structure. Section 5(g) of the statute designates "models or designs for works of art" as copyrightable works; and section 1(b) gives the copyright owner of "a model or design for a work of art" the exclusive right "to complete, execute, and finish it." In Jones Bros. Co. v. Underkoffler,26 it was held that a copyrighted design for a cemetery monument (which had been registered as a design for a work of art) was infringed by the unauthorized use of the design in the construction of a monument; the court held the monument to be a "work of art," and concluded that its construction was an execution of the design within the abovequoted provision of section 1(b).

Two other cases may be thought to afford analogies. In King Features Syndicate v. Fleischer 27 and in Fleischer Studios, Inc. v. Freudlich,28 copyrights in cartoon characters were held infringed by their reproduction in the form of three-dimensional doll figures; the courts held the figures to be copies of the cartoons. Perhaps these cases are sui generis; or perhaps they may be explained by the fact that the doll was considered a nonfunctional reproduction of the artistic form represented by the cartoon. Thus, the court in the first case observed that "the form of the horse [the cartoon character 'Spark Plug'] was the essence of the cartoon," and that the doll figure had the same nonfunctional purpose as the cartoon, "to give amusement in contemplation." 28a

In summary, while the law on this point is not entirely clear, it appears probable, from the various court decisions cited above, that copyrighted architectural plans are not now protected against their use in building a structure, except as regards a copyrighted design for

21 National Cloak and Suit Co. v. Kaufman, 189 Fed. 215 (M.D. Pa. 1911). The court referred to the distinction between copying the pictures as such and making the wearing apparel depicted.

22 National Cloak and Suit Co. v. Standard Mail Order Co., 191 Fed. 528 (S.D.N.Y. 1911).

23 Jack Adelman, Inc. v. Sonners & Gordon, Inc., 112 F. Supp. 187 (S.D.N.Y. 1934).

24 Lamb v. Grand Rapids Furniture Co., 39 Fed. 474 (W.D. Mich. 1889). It was held further that the defendant's pictures of the furniture so made by him, though similar to the plaintiff's copyrighted pictures, did not infringe as long as they were not copied from the plaintiff's pictures.

2 Fulmer v. United States, 103 F. Supp. 1021 (Ct. Cl. 1952). The court said: "The only monopoly which the copyright gave him was the exclusive right to reproduce the design, as an artistic figure." 26 16 F. Supp. 729 (M.D. Pa. 1936).

27 299 Fed. 533 (2d Cir. 1924).

25 F. Supp. 808 (S.D.N.Y. 1934) aff'd 73 F. 2d 276 (2d Cir. 1934), cert. denied, 294 U.S. 717 (1935).

28 Cf. Rushton v. Vitale, 218 F. 2d 434 (2d Cir. 1955) in which a doll figure in the form of a grotesque chimpanzee, modeled after a character in a television show, was held a copyrightable work in itself.

In the broad area of archi

a structure deemed to be a "work of art." tectural structures, those constituting "works of art" would seem to be relatively rare.29

The remaining question is whether the present copyright statute affords any protection to architectural structures as works in themselves. Here again, in the relatively rare instances of a structure which is deemed to be a "work of art," such as a monument, it may be feasible to secure copyright in the structure; 30 and protection would thereby be secured against the unauthorized reproduction of the work of art in another similar structure. But there appears to be no provision in the statute for protection in the far broader area of functional structures which, though attractively designed, do not qualify as "works of art."31

III. PROPOSALS IN PRIOR REVISION BILLS

The series of bills introduced between 1924 and 1940 to revise the copyright law all contained some provisions for the protection of architectural works. In the specification of copyrightable works all those bills mentioned, as does section 5(i) of the present statute, drawings and plastic works of a technical character;32 as pointed out above, this is deemed to include architectural plans and models. But the revision bills generally went further: most of them also mentioned both "works of architecture" (i.e. structures) and "models or designs for architectural works,"33 with the qualification that copyright extended only to the artistic character and design of such works and not to the processes or methods of construction.

Under the various bills, models or designs for artistic architectural structures would apparently have been protected, not only against reproduction as models or designs, but also against reproduction in the form of structures. Some of the bills would probably have produced this result under a general provision (with some variations in language) giving copyright owners of all classes of works the exclusive right to "reproduce" or to "transform" the copyrighted work in any medium or form or in any manner. Some of them broadened the present section 1(b) which provides for the exclusive right "to complete, execute, and finish *** * a model or design for a work of art"-to apply to all classes of works; 36 while others extended this exclusive right specifically to models or designs for "a work of architecture." 37

35

In practice, architectural plans have generally been registered in the Copyright Office as "technical drawings" under § 5(i) of the statute. A number of designs for artistic monuments have been registered as "designs for a work of art" under § 5(g); but in recent years at least, no registrations under § 5(g) have been found for architectural drawings of structures other than monuments.

30 Some registrations of copyrights in monuments as "works of art" have been made in the Copyright Office, with photographs being deposited as provided in 17 U.S.C. §§12 and 13 and in 37 C.F.R. $202.16. 31 It has been thought that the Willis bill in the 85th Congress, H.R. 8873 (1957), and the recently introduced O'Mahoney bill in the 86th Congress, S. 2075 (1959), for the protection of "original ornamental designs of useful articles", would extend the protection therein provided to the ornamental designs embodied "useful" architectural structures.

32 Dallinger bill of 1924, H.R. 9137, 68th Cong. 1st Sess., §15(i); Perkins bill of 1925, H.R. 11258, 68th Cong. 2d Sess., §9(1); Vestal bill of 1930, H. R. 12549, 71st Cong. 2d Sess., §37(i); Sirovich bill of 1932, H.R. 10976, 72d Cong. 1st Sess., §3(i); Duffy bill of 1935, S. 3047, 74th Cong. 1st Sess., 4(a), retaining the present § 5(i); Thomas bill of 1940, S. 3043, 76th Cong. 3d Sess., §15(f).

In the bills cited in note 32 supra: Dallinger, $15(n); Perkins, 9(0); Vestal, 37(o); Duffy, § 4(d); Thomas, 15(m). The two Sirovich bills mentioned only plans, models, or designs for architectural works: 1932 bill, 3(i); 1936 bill, §5(i).

In the bills cited in note 32 supra: Dallinger, §68(a); Perkins, §14; Vestal, §8; Duffy, §1(b); Sirovich 1936, § 1(b); Thomas, § 15(m).

In the bills cited in note 32 supra: Dallinger, §1(a); Perkins, § 12(a); Vestal, § 1; Sirovich 1932, §2; Sirovich 1936, § 1(b); Thomas, §4(a).

In the bills cited in note 32 supra: Dallinger, §1(f); Vestal, §1(e).

37 In the bills cited in note 32 supra: Duffy, §1(b); Sirovich 1936, §1(b); Thomas, §4(f).