Walking The 'Thin' Line Of Architectural Copyright Protection

Copyright law protects original, creative works such as music, literature or film. Architecture is a creative art form that is seldom discussed in connection with, but is equally protected by, copyright law. When one conjures images of the Guggenheim Museum, the Parthenon or the Sistine Chapel, it is easy to understand why Frank Lloyd Wright deemed architecture "the mother art," explaining that "without an architecture of our own, we have no soul of our own civilization." These highly imaginative structures surely warrant protection as works of art. But, does every architectural design merit the same degree of protection regardless of its level of creativity?

Most architectural designs lie somewhere on the continuum between predominantly creative to entirely functional. The breadth of copyright protection available for any particular design is primarily dictated by how many nonfunctional, artistic features are expressed. Most modern architectural projects are largely driven by cost efficiencies, building codes and functionality requirements rather than purely aesthetic considerations. The scope of copyright protection for certain architectural works can, accordingly, become narrow or "thin."

A Modicum of Creativity

The level of detail and creativity required to receive architectural copyright protection is low. The U.S. Court of Appeals for the Second Circuit recently held in Scholz Design v. Sard Custom Homes LLC, 691 F.3d 182 (2nd Cir. 2012), that three architectural drawings were entitled to copyright protection despite the fact that they lacked sufficient detail to allow for construction of the homes that were depicted. The court explained that the only requirement for copyrightability is that the work "possesses at least some minimal degree of creativity ... no matter how crude, humble or obvious it might be." Perhaps oddly, there is no requirement that architectural plans be developed enough to permit construction of the building represented in the drawings. Thus, it is easy to acquire copyright protection for an architectural design.

Functional and Standard Design Choices

Despite this exceedingly low threshold, the breadth of copyright protection is determined by the number of functional or standard design elements. If certain design elements of an architectural work are functionally required, they are not protected. There is similarly no protection for standard design features such as doors, windows, stairs, restrooms and other...