Abstract

Before December 1990, United States' copyright law afforded very limited protection to architectural works in the form of constructed buildings. American copyright law has traditionally denied protection for buildings based on adherence to basic tenets governing copyrightable subject matter. In a drastic departure from this tradition, Congress enacted The Architectural Works Copyright Protection Act of 1990 (hereinafter the Act) largely for the purpose of increasing the scope of copyright protection available to buildings. Adoption of the Act was an attempt to comply with treaty obligations of the Berne Convention for the Protection of Literary and Artistic Works (hereinafter Berne Convention) to which the United States became a party in 1989. The practical utility of the Act is questionable; it appears that few design professionals are familiar with the Act and even fewer are actually taking advantage of it. More importantly, the Act is at odds with several underlying principles of the United States copyright system, particularly the prohibition of protection for intrinsically utilitarian articles. This disregard for the traditional limitations of American copyright law sets a dangerous precedent in providing design professionals with broad protection for buildings, thus creating the potential for design monopolies. Given these flaws, the law as it now stands should be abandoned and revised to bring it into compliance with United States copyright guidelines.

This Note is concerned exclusively with protection afforded buildings themselves rather than with already copyrightable architectural plans, three dimensional models and other two-dimensional works "related to" architecture. Part II of this Note will outline the historical impetus and process which led to the final promulgation of the Act. Part III will describe the legal conflicts created by the Act as it is currently written, and Part IV will propose an alternative model rule which will provide sufficient protection to architectural works and will comply more fully with both the Berne Convention and United States copyright law.

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