The First Circuit has just issued its first, and I hope last opinion in a case purportedly under the Architectural Works Copyright Protection Act. The case, on appeal from the District Court of New Hampshire is T-Peg, Inc. v. Vermont Timber Works, Inc. Here is a link. (You will have to go to "Opinions," then "Last Week"). The court blows completely the fundamental distinction between protection for architectural plans (Section 102(a)(5)) and for architectural works (Section 102(a)(8)). Before 1990, only plans were protected, and only against copying as plans, not as embodied in a structure based on the plans. The 1990 Act did not change this law (hence the court of appeals erred by saying it was error for the district court to rely on pre-AWCPA case law on that point). The 1990 Act added protection in Section 102(a)(8) for the built structure; this was a new form of protection, with its own registration requirements and infringement analysis. The court of appeals cites this history but doesn't understand any of it.
Here is the relevant discussion:
"This more expansive definition means that the holder of a copyright in an architectural plan (such as Timberpeg) has two forms of protection, one under the provision for an “architectural work” under 17 U.S.C. § 102(a)(8), and another under the provision for a “pictorial, graphical, or sculptural work” under 17 U.S.C. § 102(a)(5). The legislative history confirms this point. See H.R.Rep. No. 101-735, reprinted in 1990 U.S.C.C.A.N. at 6950 (“An individual creating an architectural work by depicting that work in plans or drawing will have two separate copyrights, one in the architectural work (section 102(a)(8)), the other in the plans or drawings (section 102(a)(5)).”). "
The error, and it is profound, is in saying that because one owns rights in subject matter protected under Section 102(a)(5) that means you own rights in subject matter protected under Section 102(a)(5) and (8). The mistake is so simply stated that the court did so itself, but then somehow didn't comprehend the obvious implications of the statement: how can the owner of rights in a work protected under Section 102(a)(5) have two forms of protection, one of which isn't Section 102(a)(5)? The correct analysis is to say that the same individual may own rights in the separate copyrights provided for architectural plans and for architectural works, and may sue for infringement of both if the Office's regulations have been complied with. Then, in the resulting infringement analysis, each will be analyzed separately, and the plaintiff may prevail with respect to both claims if the requirements for both are met.
The court of appeals however conflated both forms of protection into one. I cannot fathom why, with clear Copyright Office regulations and circulars, courts can't seem to get such a simple distinction straight. Its like not being able to chew gum and walk at the same time.