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CLASS OUTLINE Goals for this class:– A. To understand the different tests for
conceptual separability– B. To be able to analyze the copyrightability of
architectural works
WRAP UP POINTS: TESTS FOR CONCEPTUAL SEPARABILITY
There is some disagreement as to the proper standard to be applied in determining whether conceptual separability exists
You should be familiar with the tests set out in the Judge Newman’s dissent in Carol Barnhardt and the Denicola test in Brandir
WRAP UP POINTS: TESTS FOR CONCEPTUAL SEPARABILITY
Esquire v. Ringer - implies that conceptual separability is only possible where one can imagine the physical separation of useful/utilitarian features, but it is practically impossible to separate them - e.g. bas relief on wall.
Kieselstein-Cord: fact-finder determines what function is primary and what function is secondary - based on likely marketability of article based simply on aesthetic qualities, not utilitarian function
Brandir: Denicola’s test is really an industrial design test - did form follow function? Did function dictate form?
WRAP UP POINTS: TESTS FOR CONCEPTUAL SEPARABILITY
Carol Barnhart majority: is decorative feature inextricably intertwined with utilitarian aspects? Is artistic design necessary to perform utilitarian function?
Newman (dissenting in Carol Barnhart) - test is mind’s eye of ordinary beholder: can he or she separate utilitarian and non-utilitarian concepts?
Which of these tests are subjective? Which are objective?
Do you like any of these tests? Can you think of a better test?
EXTENT OF PROTECTION FOR USEFUL ARTICLES
Copyright Act s. 113 has a limitation for the reproduction right in pictorial graphic and sculptural works in the context of useful articles. What is this limitation?
EXTENT OF PROTECTION FOR USEFUL ARTICLES
What does Copyright Act s. 113 provide?In the case of a work lawfully reproduced in useful articles that have been offered for sale or distribution to the public, copyright does not include any right to prevent the making, distribution, or display or pictures or photographs of such articles in connection with advertisements or commentaries related to the distribution or display of such articles, or connection with news reports.
EXTENT OF PROTECTION FOR USEFUL ARTICLES
Section 113 means that a 2-D ad or publicity reproduction of a pictorial, graphic or sculptural work work contained in or on a 3-D useful article won’t infringe the reproduction rightOf course this is subject to the limitation that the 3-D work was lawfully reproduced.
COPYRIGHTABILITY OF TYPEFACE DESIGNS
Copyright protection for typeface designs was deferred. The House Committee Report did not deny that typeface designs were writings”.
See CB p. 221Eltra v. Ringer - typeface not a copyrightable “work of art” under the 1909 Act.Are typeface designs nonetheless copyrightable?
COPYRIGHTABILITY OF TYPEFACE DESIGNS
One objection: House Report assumes that typeface design constitutes the design of a “useful article” But if it just conveys information, it can’t be a useful article and should the House Report is thus based on a faulty premise.
ARCHITECTURAL WORKS
Before 1990, to what extent was architecture protected under the 1976 Copyright Act?
ARCHITECTURAL WORKS
Before 1990, to what extent was architecture protected under the 1976 Copyright Act?
Only as “pictorial, graphic or sculptural works” This meant that technical drawings, plans, models, diagrams were protectable (if sufficiently original) but buildings were mostly excluded from protection as useful articles (unless met the conceptual separability test). Why weren’t plans “useful articles”?
ARCHITECTURAL WORKS
Why weren’t plans “useful articles”? Because their purpose was to convey the appearance of the building (see section 101)
BLUEPRINTS PRE-1990
Were they useful articles?
Would copying a plan infringe?What about constructing a 3-D building based on plans?
Demetriades v. Kaufman
What were the relevant facts?
What is the holding of this case?
What is the court’s reasoning?
ARCHITECTURAL WORKS COPYRIGHT PROTECTION ACT
OF 1990
Why was the law amended?
What buildings does the amended law apply to?
ARCHITECTURAL WORKS COPYRIGHT PROTECTION ACT
OF 1990Why was the law amended? U.S. ratification of Berne Convention - Art. 2.1includes “works of architecture” as copyrightable subject matter
What buildings does the amended law apply to? Architectural works created on or after Dec. 1, 1990. And work that is on that date unconstructed and embodied in plans or drawings if constructed by Dec 31, 2002
What’s an “Architectural Work”
Definition in s. 101? - “the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings. The work includes the overall form as well as the arrangement and composition of spaces and elements in the design, but does not include individual standard features.”
Analyzing Copyrightability
How should the Copyright Office or the courts assess copyrightability for an architectural work?Should they ignore functionality?
Analyzing Copyrightability
Functionality should not be ignored.2 step analysis1. Examine architectural work to determine whether original design elements present, including overall shape and interior architecture2. Are these design elements functionally required? If not, work is protectable without having to determine conceptual separability.
WHAT STRUCTURES ARE COVERED?
Houses, office buildings, malls (not individual units in malls)Habitable structures, garden structures, churches, garden pavilionsNOT pedestrian walkways, interstate highway bridges bridges, canals, dams