This is the One World Trade Center building, colloquially known as the Freedom tower.
It's the main tower of the now re-constructed World Trade Center site in New York City. Of course,
it’s most famous for being a part of a complex memorializing the victims of the 9/11 terror attacks.
However, did you know the designers and developers of this building have been sued twice
for copyright infringement? Once in 2004 and again in 2017,
for allegedly copying the designs originally developed by other architects years ago.
The architecture firm responsible for the design, Skidmore, Owings & Merrill, denied these
allegations and claimed any similarities in design are basically simple geometry that are industry
standards and by no means unique. So is there a threshold of originality for a building to be
“copyright-able?” Can you even copyright a building? And if so, how does it actually work?
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Before I go any further I should say: I am not a lawyer and this video is
definitely not legal advice. This is not just a disclaimer to cover myself.
Through researching this video I’ve discovered that copyright law is really really complicated
and of course it differs depending on where you are. So you should obviously consult an actual
lawyer if this is something you’re concerned about. But if you’re just curious about how
copyright works in architecture on a basic level, here’s a very general and broad overview.
Can you copyright a building? The short answer is yes. Architecture is generally considered
an “art” similar to painting, drawing and sculpting. And similar to other works of art,
someone who creates an architectural work is entitled exclusive rights to use the work for a
limited period of time. The terms of copyright and how long that limited period is depends on where
the copyright holder is located, however, the vast majority of the world implements
a version of “the Berne Convention for the Protection of Literary and Artistic Works”
an international copyright agreement that, as of April 2022, has been adopted by 181 nation states.
The United States, for instance, joined the Berne Convention in 1989. Prior to that, architectural
works did have partial protection under previously passed copyright protection laws such as the
Copyright Act of 1909 which included protection of “drawings or plastic works of a scientific
or technical nature.” This was clarified by Congress in 1976 to include "an architect's
plans and drawings.” In 1989 Congress passed the Architectural Works Copyright Protection
Act (AWCPA), which provided protection for the design of a building in virtually any form.
An architectural designer could seek protection in two ways: registering the creative work as
“pictorial, graphic, and sculptural works,” or through registration of the building designs,
including but not limited to architectural plans, technical drawings, other construction documents,
sketches, models, illustrations, and digital renderings. The act also covers the “overall
forms, arrangements and compositions of spaces.” This protection however does not extend to common
architectural features like windows, doors and other staple building components. Certain standard
and long-established architectural features like classical orders, and other recognizable historic
styles are also not protected. The protection also doesn’t include design elements attributable
to building codes, topography, engineering necessities and other general functional elements.
Another important distinction is that since Copyright protects creative works,
it does not apply to newly developed technology or improvements on products
and processes. Those fall into the realm of patents, which is a discussion for
another time. Copyright is also different from a trademark, which is the composition of letters,
words, sounds or designs meant to distinguish one company’s goods or services from another.
Historically trademarks are applied to 2D designs like logos and packaging. However in 2013
Apple managed to register the design of “the Apple Store” as a trademark,
which kind of complicates this distinction but again, story for another time.
Back to copyright, In order to prove copyright infringement,
you must not only demonstrate that someone has indeed copied and reproduced protected
elements from a work you owned the copyright to without your permission,
but also that they had access to your work, and that the two works are “substantially similar.”
This means that making minor changes to someone else’s design can’t get you out
of being accused of copyright infringement. A work also doesn’t require the copyright
symbol © or copyright notice written on it in order to receive copyright protection.
Additionally, just because someone paid for an architectural plan or construction document,
the copyright doesn’t usually get transferred to the owner or constructor. Usually the original
architects still retain the copyright, and are granting a non-exclusive license to the
owner or contractor to use their material for a particular construction project.
Having said all that though, how architectural copyright infringement claims unfold in reality
is quite complicated, inconsistent and murky. According to the American Institute of Architects,
many architectural copyright infringement cases have actually demonstrated how thin
the level of copyright protection for a functional building is, because some architectural designs,
such as the design of the vast majority of single family homes, mostly consist of standard features
arranged in standard ways.” This often makes architectural works the least protected art
form because basically anything with an intrinsic utilitarian function is likely not protectable.
The two cases of copyright infringement claims for the Freedom Tower I mentioned earlier,
were both withdrawn by the plaintiffs after
settlement agreements with the defendant, before the cases ever made it to court.
Another high profile example is The 2008 Oravec v. Sunny Isles Luxury Ventures case involving
a 43-story high-rise condominium project. In 1995-96 designer Paul Oravec developed a
design for a high-rise building that featured alternating concave and convex segments and
elevator cores protruding through the building’s roofline. In 2008, Oravec filed an action under
the copyright act against “parties associated with two condominiums collectively known as the ‘Trump Buildings"
in Sunny Isles Beach, Florida” for allegedly being derivative of his design and thus
in violation of those copyrights. The Eleventh Circuit court disagreed with his assertion
since “copyright protection does not extend to ideas but only to particular expressions
of ideas” the similarities between the Trump buildings and his design were nothing more than
at the “conceptual level.” Thus they concluded that "copyright will not protect the mere idea
of a convex/concave building, any more than it would protect the idea of an
arch or dome or tower.” However this doesn’t mean that the particularized expression of these
ideas cannot be protected within the context of a particular design. The court stated that “[w]hile
it is true that Oravec’s designs and the Trump Buildings have a number of features in common,
those elements are similar only at the broadest level of generality.” To protect this level
of generality would “lead to a ‘diminished store of ideas’ available for future works.”
In Canada, architectural works are also protected by its own Copyright Act of
1988. Prior to 1988, the Copyright Act required architectural works to possess
an identifiable “artistic quality or character.” Since 1988, the artistic requirement was removed.
Architectural works are required to demonstrate “originality” however what is considered a
threshold for originality was not defined and thus left to the discretion of the court.
In the 2017 case Lainco Inc v Commission Scolaire Des Bois-Francs,
the Canadian Federal Court confirmed the plaintiff's claim to copyright protection
of their steel structure design for an indoor soccer complex. It was the first time in 50
years a building structure has been granted copyright protection in Canadian courts.
The defendants, which were a school board, their architectural firm, and the general contractor,
had to pay nearly $750,000 in damages to the plaintiff for infringing on the copyright of
their work by building a nearly identical soccer stadium. The defendants admitted to
photographing the original complex’s steel structure while it was being constructed,
proving that they had access to the design. However the defendants claimed
that the steel structure performed an utilitarian function and was therefore not copyrightable.
In the decision, Justice Rene Leblanc indicated that copyright needs to strike a balance between
the protection of the work, while allowing for the free flow of ideas in the public domain.
Even though the structural design of this building was composed of simple,
industry standard structural elements, the arrangement of these elements to form a whole
had a level of complexity and originality that met the court’s opinion in regarding it as not
a purely mechanical product, but a aesthetically pleasing
and cost-efficient design assembly that required skilled discretion and judgment to develop.
This case demonstrated that even though the lower burden of what qualifies as
a copyrightable architectural work was established in 1988,
it took nearly 30 years for courts to eventually recognize and enforce this greater protection.
Even though there have been a handful of successful architectural copyright cases, very few cases still
ever make it to court and even in successful ones the damages awarded are often significantly lower
than what was claimed. In some countries, such as China, copyright protection is even thinner.
There are many replicas of famous buildings and even entire copies of villages in China.
However in 2013, someone actually tried to build a copycat design before the original building was
even done construction. The late architect Zaha Hadid’s design of a retail complex in Beijing
was in a race to complete construction while a near exact replica of the design was being
constructed at the same time in Chongqing. In 2020 the Chinese government decided to clamp down
on this type of behavior by passing new laws that prohibited the “plagiarizing, imitating,
and copycatting” of designs in new public facilities. I haven’t come across anything that
indicates whether these laws are actually being enforced, but it’s probably too early to tell.
On a somewhat side note, many of you may be wondering if photographing a building could
result in a violation of copyright, In most cases: no. When a building is ordinarily visible from a
public place, the copyright owner cannot prevent the making, distributing, or public display
of pictures, photographs, or other pictorial representations. You may have heard about how
it’s illegal to take pictures of the Eiffel Tower at night. Technically, you can, but the picture
has to be for personal use, the prohibition is that it cannot be used for commercial benefit.
So if you’re a photographer who wants to sell nighttime photos of the Eiffel Tower,
technically you can’t do it without the permission of the copyright holder, Pierre Bideau,
who was responsible for the light installation of the Eiffel Tower in 1985. This is because French
law does not have the same copyright exception for buildings visible from a public place. So
the copyright holder retains exclusive rights of its distribution, including photographs,
for the lifetime of the creator plus 70 years. You can distribute pictures of the Eiffel tower
taken during the day though, when there are no lights, because Gustave Eiffel died in 1923.
This is also why people have been free to create exact replicas of the Eiffel tower,
as long as they don’t replicate the exterior lighting design, since 1993.
So that’s architectural copyright. It’s confusing, difficult to enforce but also necessary, to help
protect works created by architectural professionals so we can make a living,
but also to maintain the free flow of ideas so we can continue to create and
innovate. If you’re interested in learning more about copyright I made a video about
the Creative Commons a few years ago, the link is in the card and description below.
Thanks for watching, this video involved a lot of research and reading through long,
boring legal documents. If you enjoyed it and would like to support the channel
feel free to drop a tip in my Ko-if jar. See you next time, bye! *snap!*
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