COPYRIGHT LAW FALL 2006 CLASS 11 PROFESSOR FISCHER THE CATHOLIC UNIVERSITY OF AMERICA September 27, 2006

Wrap-Up: Copyrightability of PGS Step One –Is it a PGS? If Yes, Step Two – Is it a Useful Article? If Yes, Step Three – Is it Physically or Conceptually Separable? If Yes, Step Four – Is it Sufficiently Original? If Yes, Copyrightable!

TESTS FOR CONCEPTUAL SEPARABILITY Paul Goldstein: Of the many fine lines that run through the Copyright Act, none is more troublesome than the line between protectable pictorial, graphic and sculptural works and unprotectable elements of industrial design.” See Pivot Point (7 th Cir. 2004) CB p. 234

Pivot Point Comprehensive review of different tests for conceptual separability Prefers Brandir test (as suggested by Denicola): was the form of the product the result of a creative process unfettered by functional concerns? If so, conceptual separability exists. If the design is the result of utilitarian pressures, no conceptual separability.

Pivot Point Sets out other tests for conceptual separability

Other tests for conceptual separability (c.s.) Majority (Oakes,J.) in Kieselstein-Cord: if artistic features are primary and utilitarian secondary, c.s. exists Nimmer: suggests “likelihood of marketability” test (c.s. if work would be marketable based on aesthetic qualities alone) Maj in Carol Barnhart were the artistic features required by their functions? Judge Newman’s dissent in Carol Barnhart: mind of the ordinary observer test. Paul Goldstein: The artistic features can stand alone as a work of art traditionally conceived and the useful article in which it is embodied would be equally useful without it. Patry: artistic features are not utilitarian

TAXIDERMY FORMS Are taxidermy forms copyrightable? Should they be treated similarly to human mannequins?

TAXIDERMY FORMS Hart v. Dan Chase, 86 F.3d 320 (2d Cir. 1996), Superior Form Builders v. Dan Chase, 74F.3d 488 *4 th Cir. 1996) – fish mannequins not useful articles because they just portray the appearance of an article – not glorified coat racks like Carol Barnhart.

Extent of Protection for Useful Articles Copyright Act s. 113 has a limitation, inspired by Baker v. Selden, for the reproduction right in pictorial graphic and sculptural works in the context of useful articles. What is this limitation?

TYPEFACE DESIGNS To what extent are these copyrightable?

COPYRIGHTABILITY OF ARCHITECTURE Seagram Building (Ludwig Mies van der Rohe and Philip Johnson – ) 375 Park Avenue (between 52/53d) New York City)

ARCHITECTURAL WORKS PRE AWPA AMENDMENTS BUILDINGS PGS – useful articles – separability requirement

COPYRIGHTABILITY OF BLUEPRINTS PRE-1990

ARCHITECTURAL WORKS COPYRIGHT PROTECTION ACT OF 1990 Amended definition of PGS in s. 101 to include “diagrams, models, and technical drawings, including architectural plans.” Useful articles?

Demetriades v. Kaufman, 689 F.Supp. 658 (S.D.N.Y. 1988) Allegedly infringed home Allegedly infringing

ARCHITECTURAL WORKS COPYRIGHT PROTECTION ACT OF 1990 Law amended due to U.S. ratification of Berne Convention Applies to...

ARCHITECTURAL WORKS COPYRIGHT PROTECTION ACT OF (a)(8) AWCPA s. 706 (n. a. Supp. p. 9) Applies to architectural works created (substantially constructed) on or after Dec. 1, Also to unconstructed buildings if embodied in unpublished plans or drawings if constructed by Dec 31, 2002

What’s an “Architectural Work”

Definition in s. 101? - “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.”

Architectural Works: Analyzing Copyrightability How should the Copyright Office or the courts assess copyrightability for an architectural work built on or after 12/1/90 ?

Is this copyrightable if built after 12/1/90?

2 STEP TEST FOR COPYRIGHTABILITY (of architectural works) 1. Are there original design elements present - including overall shape, interior architecture? 2. If such elements present, are these functionally required? If not, then protectable.

Is a church copyrightable?

Is a bridge copyrightable?

Michael Graves Garden Pavilions: Copyrightable?

WHAT STRUCTURES ARE COVERED? House Report (CB p. 230) Houses, office buildings, malls (not individual units in malls: must be free- standing) Habitable structures, garden structures like gazebos, churches, garden pavilions NOT pedestrian walkways, interstate highway bridges, bridges, canals, dams, cloverleafs

WHAT STRUCTURES ARE COVERED? House Report (CB p. 230): C.O. Regulation (b)(2) – a building is humanly habitable structures that are intended to be both permanent and stationary, such as houses and office buildlings, and other permanent and stationary structures designed for human occupancy, including but not limited to churches, museums, gazebos, and garden pavilions.”

Kiosks?

LIMITATIONS What other limitations are in ACPA?

LIMITATIONS What other limitations are in ACPA? 1. State common laws and statutes relating to zoning, historic preservation, building codes (s. 301(b)(4))

LIMITATIONS Right to alter or destroy building (120(b)) – applies to building embodying an architectural work Does this apply to pre 1990 structures built from copyrighted plans, like the Superdome? Curtis v. Benson, 959 F. Supp. 348 (E.D. La. 1997)

Section 120(b) Notwithstanding the provisions of s. 106(2), the owners of a building embodying an architectural work may, without the consent of the author or copyright owner of the copyrightable work, make or authorize the making of alterations to such building and destroy or authorize the destruction of such buildin

Another limitation: 120(a) 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.

Zanja Madre: Batman Forever

Zanja Madre

Michael Graves: Portland Public Services Building 1980

Portland Building