COMMENTS AND VIEWS SUBMITTED TO THE COPYRIGHT OFFICE ON COPYRIGHT IN ARCHITECTURAL WORKS

John Schulman

SEPTEMBER 21, 1959.

The Strauss study on "Copyright In Architectural Works" is quite complete. It discloses the difficulty of trying to deal with a copyright law piecemeal.

In my view the protection of architectural works in the form of buildings and other structures, is more akin to the problems of industrial designs than to copyright as such. If treated at all, it should be in that area.

All that really belongs in the copyright statute is the protection of drawings, plans, etc., against reproduction in that form. Otherwise, the problems will be endless and insoluble.

On the other hand, I think that a new statute should reject the view that the building of a house or the filing of plans destroys copyright protection for the architect's drawings. These certainly should not be publication in a dedicatory sense, any more than the performance of a play destroys copyright.

As to the exact treatment, that of course depends on the structure of a new statute.

Joshua B. Cahn

JOHN SCHULMAN..

SEPTEMBER 29, 1959.

In the portion of the study entitled "Analysis of the Issues," there is a rather extended discussion of architectural work as a work of art and the following statements are made:

"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."

I feel that distinctions drawn along the lines suggested are undesirable, Dwellings, shops, office buildings, and factories are more and more conceived of and executed as works of art and too often churches, museums, and auditoriums are erected which are without artistic value. The unexpressed notion appears to be that if a considerable portion of the cost of the building has been for decoration, it may be considered a work of art, whereas, if form has followed function, the building is not a work of art. This is a dangerous notion and one which could plunge us into the midst of a bitter artistic controversy.

Many churches and museums have been built in the "international style," bare and undecorated. Many ornate, decorated office buildings and homes have also been built. I believe it would be a great mistake to have any copyright law which required the courts or the Copyright Office to make aesthetic judgments Builders of business structures spend millions in the course of a year to secure the services of architects as consultants on the basis of the superior aesthetic qualities of the work of such architects. The motivation of the builders is in part aesthetic and in part it is to attract tenants by reason of the superior artistic quality of the structure. The design of a factory or an office building often calls

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for more expenditure of money and talent for aesthetic effects than that of a monument, church, or museum.

What then is the solution to this problem? Before considering what architectural structures should be protected by copyright, we should reconsider whether architectural structure (as opposed to architectural plans) should be protected at all.

This brings us back to fundamentals; the purpose of the copyright law: "To promote the Progress of Science and useful Arts by Securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries" (U.S. Constitution, art. I, sec. 8, clause 8).

Will architecture be stimulated with resultant benefit to the people of the United States by preventing others from copying a structure which has been erected? I doubt it. It may very well be argued to the contrary, that the dissemination of new ideas in architecture is stimulated by freedom on the part of all architects to use the buildings of others. Will architects get better pay if their employers have the exclusive use of their designs? There is no reason to think so. Doesn't the public benefit more from the rapid dissemination of architectural innovations than from exclusivity?

What would constitute an infringement of a work of architecture? In the nature of things, an architectural structure is usually composed of standard elements capable of being synthesized by craftsmen and therefore the individualized artistic flair is often less apparent than in the work of the writer, painter, or sculptor. Would it be desirable to give to the courts the additional problem of determining when there has been copying? Would architects be influenced by others at their peril? What criteria would the court or the architect use to determine the line?

In accordance with the notions expressed above, I would answer the questions listed under "Summary of Major Issues," as follows:

A. 1. The plans should not be used but, if they have already been incorporated in a structure, the structure itself may be copied.

A. 2. No.

B. 1. No.

B. 2. No.

B. 3. The building of a structure should not constitute publication of the plans and no copyright notice should be required on architectural structures.

B. 4, No protection should be given against reproduction of structures in two or three dimensional form.

B. 5. No.

Melville B. Nimmer

JOSHUA B. CAHN.

OCTOBER 19, 1959.

I have read William Strauss' interesting study on "Copyright on Architectural Works." With respect to the major issues posed by Mr. Strauss, I have the following comments:

1. The copyright in plans should very definitely protect against the unauthorized use of such plans in the building of a structure. A copyright in architectural plans which does not include the exclusive right to erect structures based upon such plans makes no more sense than copyright in musical or dramatic compositions without the exclusive right of public performance. In order to be meaningful the copyright must include rights which give the work economic value. 2. Copyright protection for architectural works should not be limited to such works as may be determined to be "works of art." I think it sufficient that the copyright be limited by the existing principle of originality (i.e., only those elements which are original with the copyright claimant may be protected), and the principle of Mazer v. Stein that the copyright protects the artistic as distinguished from the utilitarian aspect of any work.

3. I see no reason why architectural structures in themselves should not likewise be the subject of copyright protection, and here again I think it undesirable to make any arbitrary distinction as to "artistic" structures. If the form of the structure may be said to be original, this should be sufficient.

4. With respect to publication of a building structure, I would suggest that the definition of publication suggested in my article "Copyright Publication," 56 Columbia Law Review at page 197, is here applicable. That is, publication should not be said to occur unless members of the public receive a possessory