Deconstructing the Blueprint for Infringement: Remedying Flawed Interpretations of the § 120(a) Exception to Architecture Copyrights

Abstract

Drafting the Architectural Works Copyright Protection Act of 1990 (“AWCPA”) consisted of a bizarre hodgepodge of considerations.
Ostensibly, the goal of the Act was to bring the United States unquestionably into compliance with the Berne Convention for the Protection of Literary and Artistic Works, which the United States had just recently joined, with as minimal an impact on U.S. law as possible. In reality, this goal—itself not without built-in tensions—was but one of several competing forces at play in the drafting process. The other forces generally fell into three camps. There were the proponents of preserving the interests and expanding the rights of America’s architects in one corner. In the opposite corner, with a seemingly outsized influence, were the proponents of the rights of America’s architectural photographers. Finally, and most abstractly, there were the proponents of preserving the elusive integrity of copyright law itself. As a testament to this elusiveness, the most active debates were fought not between the architects and photographers, but rather among America’s foremost copyright experts whose various normative frameworks led them to competing views on how best to facilitate the progression of the law.

While all views were considered, the final product is unsurprisingly flawed: an amalgamation of poorly assimilated concepts with rampant logical loopholes. The flaws are most evident in § 120, the scope of copyright protection for architecture. Section 120(a) provides an exception, common to nearly all Berne Union members, allowing buildings to be replicated in other artists’ two-dimensional works without violating the copyright of the building’s architect. During the drafting process, while there was debate over the exact wording, there was little debate over whether to include this exception, as it seemed fairly innocuous and important for the endurance of the urban photography industry.

In 2022, the U.S. District Court for the Western District of Texas interpreted this exception to allow a realtor to reproduce and distribute the blueprints of a single-family home for marketing purposes without the consent of its architect. As confounding a conclusion as this may seem to those well-versed in copyright law, it is actually not entirely unfounded in the text. This is due in part to an edit that was made during the drafting of the definition section of the Act to include “architectural plans” in the definition of “architectural works,” thus arguably extending the same exception from the exterior of constructed buildings to their blueprints. As such, in an effort to meet its Berne obligations and provide added copyright protection for America’s architects, Congress may have inadvertently stripped architects of a right that they previously held.

Before the passage of the AWCPA, architectural blueprints were protected as “[p]ictorial, graphic, and sculptural works,” and were therefore protected against unauthorized reproduction in two-dimensional form. That said, these blueprints were not protected against construction of the buildings depicted in them because the buildings themselves were nearly always considered “useful articles,” with few to no conceptually separable elements. This protection for blueprints was clarified and codified in the Berne Convention Implementation Act of 1988, which added “diagrams, models, and technical drawings, including architectural plans” to the definition of “[p]ictorial, graphic, and sculptural works.” Substantively, the result of this amendment—that architectural plans that contained copyrightable elements could not be reproduced and distributed without the consent of the copyright owner—made no difference except to appease those concerned about the lack of explicit statutory language responsive to Berne Convention requirements. The real substantive change came a year later with the AWCPA, which created a new copyright subject matter category: “architectural works.” This category covers both plans and constructed works, thus protecting against the construction of buildings from protected plans.

It is important to note here that the AWCPA was not intended to replace the copyright protection in blueprints as “pictorial, graphic, and sculptural works,” nor was it meant to take precedence over that right. After the AWCPA, architectural blueprints are simultaneously protected both as “architectural works” and as “pictorial, graphic, and sculptural works.” These two forms of copyright protection bring with them different standards and different exceptions, but they are meant to coexist. Protection as a “pictorial, graphic, and sculptural work” is subject to the conceptual separability test. However, those elements that are deemed copyrightable are always protected against unauthorized reproduction. As noted above, the AWCPA includes a pictorial representations exception. In applying the pictorial representations exception to architectural plans, as the U.S. District Court for the Western District of Texas did, however, the protection that copyright holders previously held against reproduction of their plans as “pictorial, graphic, and sculptural works” is lost. Loss of that protection means that there is no statutory means of preventing rampant copying and distributing of architectural blueprints of constructed buildings visible from public places. It also means that protection as “pictorial, graphic, and sculptural works” for architectural plans is rendered toothless.

This is a problem for a few reasons. First, for the most successful architects, there exists a market in their blueprints and architectural drawings as art forms themselves. A quick Google search reveals that one can purchase prints of the original architectural plans of renowned architectural works, such as those by Frank Lloyd Wright, Frank Gehry, and Michael Graves. These prints contain as much artistic value as any other prints and thus Wright, Gehry, and Graves deserve the right to control the market for their original drawings just as much as Hopper, O’Keeffe, and Warhol do. Second, while it remains unlawful to construct buildings out of blueprints without the authority of the owners of the copyrights in the blueprints, there are other economic benefits that might come from copying and distributing the blueprint. Other architects might consciously or subconsciously copy those blueprints, without authorization from their authors. Realtors might circulate the blueprints to potential buyers, to promote houses on the market. The purpose of copyright law is to provide incentives to authors to create works by granting them limited monopolies on their works. With nearly no monopolies on their blueprints, architects may find that they lack incentive to create them. More abstractly, this would allow one section of the Copyright Act to invalidate another section of the Copyright Act, thus rendering the entire Act unstable.

In order to ensure that architectural plans remain protected against reproduction and the integrity of copyright law is preserved, Congress or the courts must reiterate the persistent protection of plans as “pictorial, graphic, and sculptural works” and clarify that, while an “architectural work” could be any physical manifestation of architecture, the § 120(a) exception applies only to the constructed exterior (or publicly accessible interior elements, such as the interior of the Capitol building’s dome) of the work. This interpretation is simple, but understanding why it was necessary to add architectural plans to the definition of “architectural works,” how Congress failed to perceive the ambiguities that addition potentially introduced, and where to go from here requires in-depth analysis of the legislative history and text. Part I of this Note will present the requisite background information, including the history of the inclusion of architecture in the Berne Convention, U.S. implementation of the Convention, expert opinions on the language at issue, and international interpretations. Part II will address the problems that have emerged in subsequent case law and the paradox that the intended beneficiaries might not be the actual beneficiaries of this protection. Finally, Part III will present solutions to the problem.