Monday, October 29, 2007

Calatrava, Bridges, and Moral Rights

When the 1990 Architectural Works Protection Act was being drafted, the question of what constituted an architectural work was an important one. I had become infatuated with bridge designs, from the great Swiss Christian Menn to the contemporary Spanish designer, Santiago Calatrava (see this wonderful wikipedia entry on him). I bought books on both for the study I did on architecture as a Policy Planning Advisor in the Copyright Office. To me the works of these designers and others were not only art, but great art. Calatrava's bridge at Bilbao (see here) is art by anyone's definition. In New York City, he designed the new Path transportation Station at the World Trade Center, and has designed a wild apartment building at 80 South Street consisting of stacked cubes. (See here). Despite his training as an engineer, Mr. Calatrava asserts that function follows form, and there can be no doubt that his works are sculptural.

Like Frank Lloyd Wright and other architects, there is also no doubt Mr. Calatrava's works suffer from defects in practicality, and tend to need a lot of repairing. Calatrava has recently sued Bilbao over changes to his bridge, including an extension by Japanese architect Arata Isozaki. An article in the UK newspaper The Independent spells out the dispute. Here is a link to the full article, and here is a relevant excerpt:

Calatrava is renowned worldwide for his soaring, airy bridges, and, in the case presented by lawyers in Bilbao's law courts yesterday, he claims that the new link "breaks the symmetry of the bridge, clumsily distorts the design... and damages the integrity of his work". He is demanding €250,000 compensation and the dismantling of Isozaki's extension, or, if the new link remains, - €3m for "moral damages". Initially ridiculed for "leading from nowhere to nowhere", Calatrava's footbridge is beautiful, but not exactly user-friendly. Its limpid glass floor tiles, designed to reflect the grey-green waters of the river Nervion that flow beneath, are notoriously slippery when wet. For 10 years residents and visitors have complained of skidding and tumbling. The city authorities who approved Isozaki's housing complex and his bridge link vigorously disagree. "The paintings of Goya are works of art; a bridge is for people to walk on," insisted Bilbao's mayor, IƱaki Azkuna. Without the bridge link, pedestrians would have to walk down to the old riverside jetty, then up two flights of steps. Mr Askuna concedes that a metre of banister was removed from Calatrava's bridge to accommodate Isozaki's extension, but reckons "this has no negative impactwhatsoever upon Calatrava's work", and that the structures co-exist harmoniously. Calatrava's lawyer, Fernando Villalonga, thinks otherwise. "This mustn't happen, because in this country, architecture, like other arts, is protected by intellectual property rights," he said. Mr Villalonga accused the town hall of "cheek, arrogance and ignorance". To which Mr Azkuna countered that all 560 glass tiles of Calatrava's bridge have cracked over the years, ravaged by the extremes of climate, and had to be replaced at the cost to taxpayers of €200,000. "If it's his intellectual property, let him take his intellectual property," fumed Mr Azkuna in the spring, when Calatrava launched his suit. "We've had enough of the dictatorship of Calatrava saying we can't touch his little bridge. We've had enough of this superstar."

As an American, I confess to feeling amused by the decidedly un-natural rights attitude expressed in the final quote. In the U.S., bridges were excluded from protection under the 1990 Act despite my love for them based on a concern that they and related transportation structures were too essential to the public to be tied up in copyright disputes. Moreover, even those works of architecture that were included were denied moral rights. Maybe we got things right for once.


Anonymous said...

The way it works "right" in the U.S. is that the author of a bridge has to hope it lasts unmolested for at least 50 years to then qualify as a historical landmark for preservation at which moment it obtains protection but the author will have no say in how that protection is extended. We leave that up to some do-gooder committee of local preservationists.

Standing the test of time - - a kind of pure reversal of the copyright term.

William Patry said...

Well, but in Spain there doesn't appear to be any period in which the architect can hope to preserve the work.

Anonymous said...

We got it very, very wrong in the US.

Remember, copyright is utilitarian: we want to spur the creation and publication of works which otherwise would not have been created and published, and we want to have no or minimal protection in the process.

While blueprints are certainly interesting, I think that we can agree that the public doesn't gain much from architectural works in that form so much as we do from when we actually erect structures.

But the incentives that give rise to doing that have nothing to do with copyright 99.44% of the time. More mundane issues are involved, such as whether the builder thinks he can sell or rent it profitably, whether it is necessary public infrastructure that is a good use of taxpayer dollars, etc.

No one is running around licensing skyscrapers, bridges, museums, or monuments. They tend to be one-of-a-kind structures. Copyright is pointless for them and we shouldn't grant it.

Really, the only architectural works that get built and where we see lots of them tend to be those infamous ticky-tacky houses in the suburbs, each one just like the others. While I try to avoid bringing subjective artistic judgment into copyright, since it isn't something that policy should be involved with, I doubt that anyone who loves beautiful structures and therefore copyrights in that sphere are appropriate is about to defend the burbs.

Further, even in that realm, is house piracy such a big deal that we should care even a little bit? If cookie-cutter suburban architecture has improved in the past 20 years, does anyone even seriously think for a second that it is attributable to this ill-conceived bit of law?

It is blatantly bad public policy to protect artists for the sake of protecting them. It runs counter to the goal of American copyright law, which is to serve the public interest. Likewise, just because something is art does not make it worthy of copyright protection; copyright has never been maximized in that fashion, and for good reason.

AWCPA is an unfixably bad law, always has been a bad law, and needs to go immediately if not sooner. Copyrights granted pursuant to AWCPA need to be voided or at least wholly defanged. It is shameful that it ever was enacted to begin with, much less not met with universal derision when proposed.

William Patry said...

Dear Anonymous, I don't disagree with many of the points you make about incentives and the AWCPA. When it was being drafted, we were aware that almost all of the suits would be in the semi-custom residential field, although I do think the existence of the right gives big name architects some bargaining power they didn't have before.

But the AWCPA has enacted for an entirely different reason: to comply with our Berne Convention obligations. Berne requires protection for built designs, some thought (not me) that pre-AWCPA law didn't protect them, hence the change.

Anonymous said...

But the AWCPA has enacted for an entirely different reason: to comply with our Berne Convention obligations.

Oh, I know. But then, it was a gigantic mistake to join Berne. And having joined Berne, it was a gigantic mistake for the House to go along with it. But they all did because they were not doing their job and looking out for the public interest even at the cost of a political fight. Further, copyright law had been generally non-objectionable enough to people (not that the 1909 era was a utopia or anything) so there was not much opposition.

Well, times have changed. While comprehensive reform is necessary, at the very least, an ever-increasing number of people are fed up with long term lengths. Eventually they will force Congress to fix this, and that will mean that they will force the US to exit Berne.

So invoking the spectre of Berne doesn't mean much to me, as it is not a justification on its own (harmonization is just not a valid public policy goal in US copyright law) and is not going to be around all that much longer anyway.

It took a lot, but the copyright industry finally got too greedy, went too far and caused ordinary people to take an interest in copyright. It's for the best that this correction happens, but from the industry's point of view, it was a blunder akin to attacking Pearl Harbor.

Anonymous said...

Someone can say me, please, what is the really situation or MORAL RIGHTS for de music composer. Ud is Berne convention member, but i spend tres days and cant find any concrete information abaut this point. VARA is only for visual arts, what about de rights of music authors.
thank you
I live in Havana, Cuba