False Promises
posted by Gerard Magliocca
Last weekend I was in Oak Park (outside Chicago) for the annual Frank Lloyd Wright house tour. Few people rise to the level of genius in my eyes, but Wright is one who does. What he accomplished also raises an important issue in IP law that I’d like to talk about.
In 1990, Congress passed the Architectural Works Copyright Protection Act. Before this, buildings were not copyrightable because they were functional. This meant that anyone who took a picture of a building (like mine of Fallingwater) or produced an artistic work that used the image of a building exterior could do so freely. The only exceptions were that: (1) building interiors are controlled by the property owner (based on trespass); and (2) there might be circumstances where an exterior could be a trademark. Congress evidently concluded in 1990 that giving architects a copyright in their building exteriors was a good idea.
The Architectural Works Copyright Protection Act exemplifies everything that is wrong with IP law. There was no evidence in 1990 that innovation in architecture needed a boost, nor is there any indication that the extension of copyright law to buildings improved architecture. This reflects a broader problem that cuts across many IP debates (on business method patents, the lengthening of copyright terms, the enactment of a federal trademark dilution remedy), which is the assumption that more IP protection is always good. Clearly, there are some situations in which this is true, but advocates of robust IP rights sometimes use this as a mantra no different from those who say that cutting taxes is always good.
The Architecture Act served only to redistribute income — albeit a limited amount — from the public domain to architects. Now one can have a valid distributional debate about who ought to get this pot of money. But don’t kid yourself — that’s all that’s going on.
Why am I bringing this up? Because the Architecture Act is now being cited as a precedent for extending copyright protection to fashion designs, which are also not generally copyrightable because of their functionality. Fashion designers have been asking for this since the 1930s, but a renewed push for this may be gaining traction in Congress.
Is there any indication that innovation in fashion is suffering? Not that I know of. There is a thought that European countries protect designs more than we do, but there is a simple answer to that — import their designs and products. In this sense, design protection often serves as code for protectionism because it’s a way of aiding domestic producers at the expense of consumers.
In the end, the argument for fashion design protection comes down to the argument that consumers should transfer some of their surplus to designers. If there were a benefit to this (in the form or more or better fashion), then that might be justifiable. Without evidence for that proposition, though, all you have is a fashion tax that redistributes wealth. It’s a bad idea that should be rejected.
May 21, 2009 at 5:11 pm
Posted in: Intellectual Property, Uncategorized
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Responses (5)
James Grimmelmann - May 21, 2009 at 6:24 pm
Until the AWCPA, architectural works were part of the “useful article” exception from copyright. The AWCPA’s inclusion of architectural works could equally well be characterized as restoring parity between architectural works and other more traditionally copyrightable forms of creativity.
Architectural works are still not copyrightable to the extent that their form is actually functionally determined (this is a consequence of the merger doctrine). The effect of the AWCPA was only to remove architectural works from the broader useful-article rule, which excludes even non-functional aspects of useful articles from copyrightability.
It’s still legal to take pictures of or make paintings of architectural works.
The AWCPA doesn’t “only” redistribute income from the public domain to architects. It redistributes it from some architects to others.
There are also moral arguments, entirely separate and apart from the utilitarian arguments, that are used to justify architecture and fashion copyrights.
Don’t get me wrong; there are lots of problems with architectural copyright. (Here’s one of my favorite horror stories.) The AWCPA is dreadfully drafted, and courts have done dreadful things misinterpreting it. The story is just more complicated than you make it out to be.
Bruce Boyden - May 21, 2009 at 8:03 pm
James is right about photos: 17 U.S.C. s 120(a) permits them, as long as the building is visible from a public space (I read that as meaning any photo of such buildings is OK, no matter where taken from).
Re: architectural works and fashion, I think the argument for protecting them is the same, namely, desert — both are creative works that “deserve” protection, just like any other artwork. The idea that particularized economic incentives are the sole legitimate justification for copyright misses part of the story, I think. That’s not to say that I necessarily support fashion design protection or even architectural works protection.
Marc Halberstram - May 22, 2009 at 3:52 pm
I think this article makes a mountain out of a mole hill.
The AWCPA didn’t change all that much. It did however, extend EXTREMELY limited protection to the spacial elements of certain buildings beyond what was allowed by suing for infringement of the architects plans.
http://www.mlaartsbrief.org/issues/mlaartsbrief-winter2009.pdf
Theresa Esquerra - May 23, 2009 at 10:56 am
Actually, the bills introduced in the 1930’s and beyond were to protect, otherwise unprotected at the time, textile patterns (i.e. prints on fabric) NOT the overall shape of the garments which is being asked for today. And textile patterns did become protected after Mazer v. Stein and the concept of separability was introduced. Right after Mazer was decided the Copyright Office issued a new policy saying that they would register artistic textile patterns. It didn’t end the world, neither will today’s law to protect the overall shape of the garment.
Non-Sequiturs: 05.22.09 | Legal 411 . - May 25, 2009 at 10:03 pm
[...] * And here is an argument against extending copyright protection to architecture and fashion design. [Concurring Opinions] [...]
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