Lauren Jean Bradberry, a third year law student at Louisiana State has a comment in volume 76 of the Louisiana Law Review examining the scope of copyright protection for architecture. It offers an interesting read, so long as you can forgive the puns we lawyers seem to love.
From the introduction:
For instance, a haphazard application of the dissection test to complex works such as the Taliesin could leave its most defining features, including its overall form, unprotected. If strictly applied, the dissection test would not protect the unique doors and windows of the home. Because all houses have doors and windows, the dissection analysis would place all doors and windows in the public domain. Wright’s use of varying levels would not qualify for protection for the same reason that makes this technique unique—the topography dictated the varying levels. The pond designs and placements could be denied protection as merely a preference of the consumer. Even the roof line, the most stunning feature of the house, is likely to be unprotected under a mechanical application of the dissection test because engineering design constraints dictated the specific angles of the roof. Missing throughout this entire process is protection of the overall form. Despite relying on sound copyright doctrine, the Second Circuit’s dissection method could lead to these undesirable results if inattentively applied.
Although unauthorized copiers may be rejoicing, the underpinnings of copyright are being neglected by all three of the tests. Blindly categorizing or dissecting architecture leaves the judge with a heap of mangled doors, windows, columns, and walls with no protection, ignoring the expansive definition of architecture. Courts should put the house back together again by examining the work as a whole first, instead of as dissected solitary features. Courts should then apply a careful dissection analysis to protect any individual, original elements of the design. Otherwise, the courts will deny protection in a categorical fashion for architectural works and allow unlawful copying to occur. Part I of this Comment presents the background of the AWCPA and the current judicial treatment of AWCPA claims. Part II explores the inadequacies of the congressional and judicial tests for scope of copyright protection for architectural works. Part III examines sui generis protection for other inherently functional works and the judicial treatment when determining the scope of protection in those areas. Finally, Part IV proposes a workable test that courts can use to determine the scope of copyright protection for architectural works. This test uses a modified version of the Second Circuit’s dissection test to ensure that courts do not pass over original large-scale groupings of elements and original overall form for copyright protection.
A very interesting discussion. But I guess I’m left wondering what the harm would be as a policy matter in more unauthorized copying of beautiful homes like this? Wouldn’t it be nice to live in a home with thoughtful design like this? By imposing strict copyright principles on architects, wouldn’t it be harder for new homes to appropriate this lovely design?
Bradberry, Lauren Jean. Comment. Putting the house back together again: the scope of copyright protection for architectural works. 76 La. L. Rev. 267-305 (2015).