A RCHITECTURAL W ORKS Prior to 1990, architectural plans were protected as graphic works, but finished buildings were not protected due to their inherent functionality. Pre-1990, one could only protect elements of a finished building on the separability analysis discussed last class. Since plans were protected but buildings were not, one could build from a protected plan, and the resulting building would not be an infringement. In 1990, Congress passed the Architectural Works Copyright Protection Act (AWCPA), which folded into the Copyright Act, and included the new category for “architectural works” (though architectural plans can still qualify as graphic works).

Buildings are not subject to the separability analysis for useful articles. Where an architectural plan is protected as a graphic work, a building built from those plans still does not infringe. Section 101 defines an architectural work 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 individual standard features.

What Is a “Building”? Note that the definition in §101 does not define “building”. The AWCPA House Report says that buildings are “habitable structures such as houses and office buildings. It also covers structures that are used, but not inhabited, by human beings, such as churches, pergolas, gazebos, and garden pavilions.” The Copyright Office prohibits registration of “[s]tructures other than buildings, such as bridges, cloverleags, dams, walkways, tents, recreational vehicles, mobile homes, and boats.”

Nelson-Salabes, Inc. v. Morningside Holdings 2001 WL (D. Md. 2001), aff’d in part, rev’d in part on other grounds, 284 F.3d 505 (4 th Cir. 2002)

Intervest Construction, Inc. v. Canterbury Estate Homes, Inc. 554 F.3d 914 (11 th Cir. 2008)

There are some important limitations to copyrights in architectural works outlined in §120: (a) Pictorial Representations Permitted.—The copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place. (b) Alterations to and Destruction of Buildings.—Notwithstanding the provisions of section 106(2), the owners of a building embodying an architectural work may, without the consent of the author or copyright owner of the architectural work, make or authorize the making of alterations to such building, and destroy or authorize the destruction of such building.

C HARACTERS Characters do not fall neatly into any of the eight listed categories of authored works. They appear as elements in a variety of works (literary works, video games, motion pictures, comic strips, graphic works…), but are they separately copyrightable? Metro-Goldwyn-Mayer, Inc. v. American Honda Motor Co. 900 F. Supp (C.D. Cal. 1995)

Titan Sports, Inc. v. Turner Broadcasting Systems, Inc. 981 F. Supp. 65 (D. Conn. 1997)

D ATABASES The TRIPS Agreement requires member countries to provide protection for databases as compilations. Because copyright does not protect the facts contained in a database, copyrightability of a database depends upon the selection and arrangement of those facts. Recall Feist

However, because of the expense often involved in compiling the facts in a database, there is a call for some sort of protection for these facts so as to provide public-good incentive for collecting them. As it stands, databases tend to have very “thin” copyright protection, and are otherwise protected at the state level on the basis of unfair competition laws, contract, and trade secret laws. To date, attempts to create new database protection laws have failed.

Bellsouth Advertising & Publishing Corp. v. Donnelly Information Publishing, Inc. 999 F.2d 1436 (11 th Cir. 1993) (en banc), cert. denied, 510 U.S (1994) CCC Information Systems, Inc. v. Maclean Hunter Market Reports, Inc. 44 F.3d 61 (2d Cir. 1994), cert. denied, 516 U.S. 817 (1995) CDN Inc. v. Kapes 197 F.3d 1256 (9 th Cir. 1999) Matthew Bender & Co. v. West Publishing Co. 158 F.3d 693 (2d Cir. 1998), cert. denied, 526 U.S (1999)