As a parallel to the observations made in the preceding analysis regarding architectural plans, ordinary structures embodying ideas, processes, or methods of construction, but having no artistic features, would not seem to be appropriate subjects for copyright protection. On the other hand, consideration should be given to providing explicitly for some kind of protection of architectural structures that are artistic in character. Most of the prior revision bills, as well as foreign laws generally, provide for protection of "artistic" architectural structures (as to their artistic character but excluding processes or methods of construction). 69 The prior revision bills and foreign laws do not resolve the question of what constitutes an "artistic" structure. This difficult question of definition is apparently the same, in the specific field of architecture, as the familiar and troublesome question of what constitutes a "work of art" in other areas of three-dimensional objects that may be utilitarian or aesthetic or both in combination. Like the general term "work of art," the concept of "artistic" structures eludes precise definition.70 Some broad delineations, however, can be suggested. The ordinary structure designed for functional use (such as dwellings, shops, office buildings, factories, etc.) though attractive of its kind, would rarely, if ever, qualify as a "work of art." A monumental structure which is to be enjoyed, not in any functional use, but in the contemplation of its aesthetic form and the evocation of feeling, may readily qualify. Between these two extremes is a range of structures (of which some churches, museums, or auditoriums may be examples) which have both functional use and artistic form in varying degrees. It is in this last category that the dividing line between the primarily utilitarian and the primarily artistic (with the other being present to some extent) becomes shadowy, sometimes leaving much to subjective judgment as to whether a particular structure is or is not a work of art. It has been suggested that the long-term protection of the copyright statute should be extended only to architectural structures that are solely artistic in character with no functional utility; or at most, to those that are primarily artistic though having some utilitarian aspects. If this view is adopted, perhaps some other form of protection for a relatively short term would be appropriate for the features of artistic embellishment incorporated in a primarily utilitarian structure. Such protection might be given, for example, under general legislation like that recently proposed for the protection of "ornamental designs of useful articles." 71 2. Publication.-If architectural structures of an artistic character are to be copyrightable, the question of whether such a structure located in a public place is a "published" work should be resolved.72 This question would have particular significance if, as under the present statute, a copyright notice is to be affixed to published "copies" of a work. 73 See supra at notes 33 and 34. See supra, part IV. "For an attempt to indicate broadly the scope of the term "work of art" in the present copyright statute, see Copyright Office Regulations, 37 C.F.R. $202.10. 71 See the Willis bill, H.R. 8873, 85th Cong. (1957) and the O'Mahoney bill, S. 2075, 86th Cong. (1959). "This is not necessarily the same as the question discussed earlier of whether the building of a structure constitutes publication of the plans. The question here is whether the structure is a published work in itself. "See 17 U.S.C. § 10. A structure built in a public place is accessible to the public and its artistic form is thereby disclosed to public view." But public disclosure is not synonymous with "publication."75 The concept of "publication" in the copyright law generally denotes that copies have been reproduced and circulated to the public. Some of the prior revision bills provide that the construction of a work of architecture shall not constitute publication." Assuming that architectural structures are to be treated as published works for other purposes, it would still be possible, if desired, to exclude them from any general requirement that a copyright notice be affixed to published copies. 3. Rights in copyrighted structures. As reflected in the prior revision bills 78 and in foreign laws," the copyright protection of an artistic architectural structure is basically against its unauthorized reproduction in the form of another structure, and perhaps in the form of plans from which another structure could be built; and such protection relates only to its artistic form, not to the structural processes or methods utilized. Beyond that, inasmuch as architectural structures are exposed to public view, and their artistic appearance is intended to be enjoyed by the public, they are commonly reproduced pictorially in drawings, photographs, motion pictures, and television broadcasts. Such two-dimensional portrayal of the appearance of an artistic structure (other than in the form of architectural plans) does not compete with the architect's interest in the structural use of his artistic work. In view of these considerations applicable specially to architectural structures, most of the prior revision bills 80 and some foreign laws 8 provide explicity that architectural structures are not protected against their representation in a two-dimensional picture.82 4. Remedies for infringement.-Special limitations may be needed on the application to infringing architectural structures of some of the remedies provided for copyright infringements generally. A person who, in building a structure, infringes the copyright in architectural plans or in a similar structure, should presumably be liable for damages in the same manner as the infringer of any other class of copyrighted works. But when the infringing structure has been erected to a substantial extent, the public interest would seem to 74 Such public disclosure has been held in two cases to constitute publication of the design of the structure under the common law. See supra at notes 5 and 8. 75 Thus, a public performance of a dramatic or musical work, though a form of public disclosure of the work, does not constitute publication. See Strauss, Protection of Unpublished Works, supra note 2, part II. 76 The present statute defines "the date of publication" as meaning "in the case of a work of which copies are reproduced for sale or distribution. . . the earliest date when copies of the first authorized edition were placed on sale, sold, or publicly distributed (17 U.S.C.§ 26). In Art. VI of the Universal Copyright Convention,"publication" is defined as meaning "the reproduction in tangible form and the general distri bution to the public of copies of a work from which it can be read or otherwise visually perceived." "See supra at note 41. Similar provisions are found in the Berne Convention (1908 and subsequent revisions, Art. 4) and in the United Kingdom Copyright Act of 1956, § 49(2) (c). 78 See supra at notes 34, 35, 38, 39. 79 See supra, part IV, particularly in regard to the United Kindgom, France, Germany, and Mexico. 80 See supra at note 38. $1 See supra at note 47 regarding the United Kingdom; German Act of Jan. 9, 1907, § 20; Mexican Law of Dec. 29, 1956, Art. 15(b). It should be noted that the recent United Kingdom Copyright Act, 1956, contains a novel provision that the copyright in an architectural structure is not infringed by any reconstruction of an existing structure, and that the copyright in the plans for an authorized structure is not infringed by use of the plans in such reconstructon (§ 9(10)). This provision was apparently prompted by the fact that many buildings in the United Kingdom, some of which are still under copyright protection, were damaged during the Second World War. 82 The same considerations would seem to apply also to other three-dimensional works of art, such as sculptures, situated in a public place. Some foreign laws make similar provisions permitting two-dimensional pictures of any three-dimensional work of art so situated. See, e.g., United Kingdom Copyright Act, 1956, § 9(3); German Act of Jan. 9, 1907, § 20; Mexican Law of Dec. 29, 1956. Art. 15(b). 84 militate against the economic waste involved in enjoining its completion or in requiring its destruction.83 So, most of the prior revision bills and some foreign laws 85 contain provisions specifying that the general remedies of injunction and destruction are not applicable to an infringing architectural structure after its construction has substantially begun. Even in the absence of such an express provision, it seems unlikely that the courts, in whose discretion these remedies lie, would enjoin the completion of an architectural structure or order its demolition. VI. SUMMARY OF MAJOR ISSUES A. As to architectural plans (including drawings or models): 1. Should the copyright in such plans (which now protects them against unauthorized copying and publishing in the form of plans) be extended to protect them also against their unauthorized use in the building of a structure? 2. If so, should protection against such use be confined to the building of an artistic structure that would qualify under the statute (see B 2, below) as a copyrightable work in itself? B. As to architectural structures: 1. Should artistic structures be protected as copyrightable works in themselves? 2. If so, how should the structures to be protected under the copyright statute be defined: (a) in terms of those that are solely artistic in character with no utilitarian function, or (b) in terms of those that are works of art in their general appearance though also having some utilitarian function, or (c) in some other terms? 3. Should the building of a structure in a public place constitute publication of the plans or of the structure? If so, should a copyright notice (if required generally on published copies of works) be required on architectural structures? 4. Should copyright protection of structures be limited to the reproduction of their artistic form in another structure or in architectural plans (thereby excluding protection against reproduction in two-dimensional pictures)? 5. Should the statute specify that the remedies of injunction and destruction shall not be available in respect to infringing structures substantially begun? 83 Under 101 of the present copyright statute, the remedies available generally for copyright infringe. ment include an injunction (subsec. (a)) and the destruction of "infringing copies or devices" (subsec. (d)). For a general discussion of these remedies, see Strauss, Remedies Other Than Damages for Copyright Infringement [Study No. 24 in the present series of committee prints]. 84 See supra at note 40. 85 See United Kingdom Copyright Act, 1956, § 17(4); German Act of Jan. 9, 1907, § 37. |