Abstract

Architecture is the most commonly experienced and pervasive of all the arts. The creative efforts of architects culminate in structures used for shelter, pleasure, business, entertainment, and transportation.1 Architects express their design concepts in sketches, elevations, floor plans, working drawings, specifications, renditions, and three-dimensional models. Their labors in shaping the ideas for a building from rough conceptions into plans and then into completed structures are similar to the efforts of other creators. An architect is as much an author as is a sculptor or a dramatist. His plans, renditions, and the resulting structure will ordinarily show originality and will reflect his personality. As Justice Holmes stated, "Personality always contains something unique. It expresses its singularity even in handwriting, and a very modest grade of art has in it something irreducible, which is one man's alone. That something he may copyright unless there is a restriction in the words of the act.

The Copyright Act of 1909 did not include architectural plans, blueprints, or designs in its classes of copyrightable subject matter; nor does the 1976 Act explicitly mention architectural works. This continuing statutory silence, however, does not preclude all protection for architectural works. It is well established, for example, that plans are copyrightable "writings.” Less clear, however, is whether copyright protection extends to the use of plans without actual copying or to the structures depicted by the plans.

Although copyright protection is available for several forms of architectural expression, a variety of restrictions have been imposed that severely limit its adequacy. These limitations present serious problems because architects, like other creators, need to be rewarded for their ingenuity and effort. Without adequate copyright incentives, progress in this important art form might be retarded. This article discusses the nature and scope of the protection that copyright affords to architectural works and the several limitations on this protection. Initially, it considers the copyrightability of plans and the architect's right to control their reproduction in copies and their use in the construction of the buildings depicted. The article then analyzes the copyrightability of structures and discusses the rights that an architect has in a completed building. In the course of this analysis, the article also proposes several theories for architects to assert against the unauthorized copying and use of their creative works.

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