Academic journal article Northwestern University Law Review

Substantial Similarity and Architectural Works: Filtering out "Total Concept and Feel"

Academic journal article Northwestern University Law Review

Substantial Similarity and Architectural Works: Filtering out "Total Concept and Feel"

Article excerpt


The appropriate scope of copyright protection for architectural works in the United States has long been a difficult and blurred issue.1 While the enactment of the Architectural Works Copyright Protection Act (AWCPA) in 1990 partially resolved the issue by explicitly extending protection to architectural design for the first time, it failed to sufficiently delimit the scope of protection.2 The legislative history of the AWCPA simply indicates that "original design elements" are protected, but that "functionally required" elements are not.3 Congress left courts with the task of interpreting these guidelines to determine the scope of protection on an ad hoc basis.4

The fundamental difficulty in reconciling architectural works with copyright law arises from the dichotomous nature of architecture as both aesthetic and utilitarian.5 This difficulty is magnified in the context of modern architecture, where, as famously observed by Louis H. Sullivan, "the pervading law of all things .. . [is] that form ever follows function."6

Shine v. Childs1 may prove to be a seminal case that shapes the future interpretation of the AWCPA. The unusual facts of the case have captured the attention of the popular media.8 The dispute involves the design of the Freedom Tower, the tallest proposed building at the new World Trade Center site in New York City. The media's interest in Shine arises in part from the emotional resonance of the World Trade Center redevelopment project. Additionally, the case presents a classic David and Goliath struggle, with allegations that a world-renowned architect of one of the country's largest firms stole the designs for the Freedom Tower from an architectural graduate student.

Perhaps most significantly, Shine is the first case to involve a monumental architectural work, what the U.S. Copyright Office terms a "work of architecture which is self-conscious artistic expression of a high order."9 Prior case law was limited primarily to the infringement of standard designs of residential tract homes and commercial buildings.10 In this regard, the decision in Shine represents a step into uncharted territory under the AWCPA. The court's copyright infringement analysis in Shine may affect the scope of protection for architectural works.

Generally, to establish copyright infringement, the plaintiff must demonstrate that the defendant's copying rises to the level of improper appropriation, in that substantial similarity exists between protected material in the plaintiffs work and the allegedly infringing work." Substantial similarity is one of the most difficult determinations in copyright law, and courts have applied different tests depending on the nature and complexity of the subject matter at issue.12 For simple, aesthetic works such as fabric designs and children's books, courts have applied the "total concept and feel" test, which relies on the visceral response of the ordinary observer to the works in their entirety.13 For more complex works such as computer software, courts have taken an analytic dissection approach that filters out the unprotectible elements of the plaintiffs work prior to comparison.14

In its analysis to determine substantial similarity between the two building designs, the court in Shine made a fundamental decision about the nature of architectural works. It characterized architectural design as aesthetic art, analogous to carpet design, and applied the "total concept and feel" test.15

It is necessary to examine the substantial similarity analysis in Shine because the selection of a holistic, visceral test for overly complex subject matter may result in overbroad protection of architectural works and negatively impact the progress of creativity in the field. This Note proposes to identify the substantial similarity test that provides the optimal scope of protection for architectural works by evaluating the nature and complexity of architectural design, and locating it along the spectrum of subject matter traditionally afforded copyright protection. …

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