1. COPYRIGHT LAW 2002: CLASS 9 PROFESSOR FISCHER THE CATHOLIC UNIVERSITY OF AMERICA FEBRUARY 11, 2002

2. CLASS OUTLINE Goals for this class: – A. To understand the different tests for conceptual separability – B. To be able to analyze the copyrightability of architectural works

3. WRAP UP POINTS: TESTS FOR CONCEPTUAL SEPARABILITY There is some disagreement as to the proper standard to be applied in determining whether conceptual separability exists You should be familiar with the tests set out in the Judge Newman’s dissent in Carol Barnhardt and the Denicola test in Brandir

4. WRAP UP POINTS: TESTS FOR CONCEPTUAL SEPARABILITY Esquire v. Ringer - implies that conceptual separability is only possible where one can imagine the physical separation of useful/utilitarian features, but it is practically impossible to separate them - e.g. bas relief on wall. Kieselstein-Cord: fact-finder determines what function is primary and what function is secondary - based on likely marketability of article based simply on aesthetic qualities, not utilitarian function Brandir : Denicola’s test is really an industrial design test - did form follow function? Did function dictate form?

5. WRAP UP POINTS: TESTS FOR CONCEPTUAL SEPARABILITY Carol Barnhart majority: is decorative feature inextricably intertwined with utilitarian aspects? Is artistic design necessary to perform utilitarian function? Newman (dissenting in Carol Barnhart ) - test is mind’s eye of ordinary beholder: can he or she separate utilitarian and non-utilitarian concepts? Which of these tests are subjective? Which are objective? Do you like any of these tests? Can you think of a better test?

6. SURREALIST FUR-LINED TEACUP Is the Oppenheim furlined teacup copyrightable? Why or why not?

7. EXTENT OF PROTECTION FOR USEFUL ARTICLES Copyright Act s. 113 has a limitation for the reproduction right in pictorial graphic and sculptural works in the context of useful articles. What is this limitation?

8. EXTENT OF PROTECTION FOR USEFUL ARTICLES What does Copyright Act s. 113 provide? In the case of a work lawfully reproduced in useful articles that have been offered for sale or distribution to the public, copyright does not include any right to prevent the making, distribution, or display or pictures or photographs of such articles in connection with advertisements or commentaries related to the distribution or display of such articles, or connection with news reports.

9. EXTENT OF PROTECTION FOR USEFUL ARTICLES Section 113 means that a 2-D ad or publicity reproduction of a pictorial, graphic or sculptural work work contained in or on a 3-D useful article won’t infringe the reproduction right Of course this is subject to the limitation that the 3-D work was lawfully reproduced.

10. Are Typeface Designs Copyrightable? Example

11. COPYRIGHTABILITY OF TYPEFACE DESIGNS Copyright protection for typeface designs was deferred. The House Committee Report did not deny that typeface designs were writings”. See CB p. 221 Eltra v. Ringer - typeface not a copyrightable “work of art” under the 1909 Act. Are typeface designs nonetheless copyrightable?

12. COPYRIGHTABILITY OF TYPEFACE DESIGNS One objection: House Report assumes that typeface design constitutes the design of a “useful article” But if it just conveys information, it can’t be a useful article and should the House Report is thus based on a faulty premise.

13. ARCHITECTURAL WORKS Before 1990, to what extent was architecture protected under the 1976 Copyright Act?

14. ARCHITECTURAL WORKS Before 1990, to what extent was architecture protected under the 1976 Copyright Act? Only as “pictorial, graphic or sculptural works” This meant that technical drawings, plans, models, diagrams were protectable (if sufficiently original) but buildings were mostly excluded from protection as useful articles (unless met the conceptual separability test). Why weren’t plans “useful articles”?

15. ARCHITECTURAL WORKS Why weren’t plans “useful articles”? Because their purpose was to convey the appearance of the building (see section 101)

16. GARGOYLES ON A BUILDING Are they protectable prior to 1990 amendments? Why or why not?

17. BLUEPRINTS PRE-1990 Were they useful articles? Would copying a plan infringe? What about constructing a 3- D building based on plans?

18. Demetriades v. Kaufman What were the relevant facts? What is the holding of this case? What is the court’s reasoning?

19. ARCHITECTURAL WORKS COPYRIGHT PROTECTION ACT OF 1990 Why was the law amended? What buildings does the amended law apply to?

20. ARCHITECTURAL WORKS COPYRIGHT PROTECTION ACT OF 1990 Why was the law amended? U.S. ratification of Berne Convention - Art. 2.1includes “works of architecture” as copyrightable subject matter What buildings does the amended law apply to? Architectural works created on or after Dec. 1, 1990. And work that is on that date unconstructed and embodied in plans or drawings if constructed by Dec 31, 2002

21. What’s an “Architectural Work” Definition in s. 101?

22. 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.”

23. “Architectural Works” What’s a standard feature?

24. “Architectural Works” What’s a standard feature? E.g. windows, doors

25. Analyzing Copyrightability How should the Copyright Office or the courts assess copyrightability for an architectural work? Should they ignore functionality?

26. Analyzing Copyrightability Functionality should not be ignored. 2 step analysis 1. Examine architectural work to determine whether original design elements present, including overall shape and interior architecture 2. Are these design elements functionally required? If not, work is protectable without having to determine conceptual separability.

27. To what extent is this copyrightable (built after 12/1/90)?

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

29. Is a church copyrightable?

30. Is a bridge copyrightable?

31. WHAT STRUCTURES ARE COVERED? Houses, office buildings, malls (not individual units in malls) Habitable structures, garden structures, churches, garden pavilions NOT pedestrian walkways, interstate highway bridges bridges, canals, dams

32. Limits on copyright for architectural works Copyright Act s. 120