Monday, August 21, 2006

What is so Hard About the AWCPA?

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.


Anonymous said...

I just don't see it. I think perhaps you are parsing the opinion a bit too closely. Properly read in context, it looks to me that the court got it basically right, and understands the basic point that the creator of an architectural plan (in the real world meaning of that phrase, i.e. a drawing of a building) can get copyright protection both under section 102(a)(8) and section 102(a)(5).

The only problem I see is that the court is referring to "the creator of an architectural plan" as a "holder of a copyright in an architectural plan" which is just imprecise phrasing, not a misunderstanding.

William Patry said...

The problem is also seen in the pgrasing of the issue:

"Timberpeg argues that this definition is broad, and that VTW's timberframe (as reflected in the shop drawings and as constructed) infringes Timberpeg's copyright in the architectural work as embodied in its second, registered preliminary plans and including a particular configuration of elements which together form the work."

As I see it, and this was a big issue in the district court - to which i wrote a letter about it -- is the failure to appreciate that a registration for architectural plans only gives ones right to sue for infringement of plans, that is photocopying and the like. It does not give one the right to sue for plans as expressed in a building. Only a registration for the architectural works does that

Nobody said...

What was the quality of the briefing before the Court of Appeals? Did the parties call its attention to the clear guidance available? Or did they, collectively, misunderstand the law, lulling the court into a false sense of security? That's often a reason that courts fail to do sufficient research of their own.

Anonymous said...

According to the factual discussion the architectural plans here were registered as an "architectural work," as permitted by the statute: "An 'architectural work' is the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings."

Are you saying that if an architectural work is only embodied in plans, then there is infringement of the copyright in the architectural work only if one copies the plans by photocopying and the like? This seems a counterintuitive reading of the statute, as it leaves no difference in the scope of protection between 102(a)(5) and 102(a)(8).

Anonymous said...

Overall, I think this is a splendid opinion. Note particularly the discussion about the inapplicability of the "separability" doctrine to architectural works. This is the issue I recently raised in the discussion about the Mason Pilon (parking garage) case, and is to my knowledge the first time a court has explicitly addressed this issue.

I think I see Prof. Patry's concern, although I do not think CTA1 deserves quite as much grief as the good professor gives them.

If one interprets the Court's opinion as saying that *all* authors of *all* "architectural plans" get both AW and technical drawings protections, then Prof. Patry's concerns are correct. Clearly, if a set of architectural plans was published (or the building depicted therein was constructed) prior to the effective date of the AWCPA, there is no architectural works protection as a matter of law. Similarly, in a situation where an architect designs the building, but farms out the technical drawings to an outside draftsman, there can be a situation where the "author" of the technical drawings would not own the underlying architectural work copyright.

However, I think the T-Peg court was addressing the situation that occurs in the vast, vast majority of architectural copyright cases: where one author creates the architectural work by creating technical drawings that depict the work. In such case, the author owns *both* the architectural works and the technical drawing copyrights.

If such an author registers only the technical drawings copyright, he cannot sue for infringement of his architectural works copyright. (If he owns both copyrights, this can be fixed by simply registering the AW copyright as well and then amending pleadings if necessary.)

However, the converse is not the case, which is the point I think the T-Peg court was making. An architectural works copyright owner can sue for both the creation of an infringing structure AND for the creation of infringing plans -- regardless of whether or not he has registered his technical drawings copyright. This is so because the creation of infringing plans involves the creation of an illegal "copy" of the "architectural work."

As the first commenter recognized, the root of this problem is that courts facing a case of an architectural works copyright often speak about the case being about "architectural plans," without realizing that there may be a technical distinction between architectural works and technical drawings copyrights. Where, as in T-Peg and Palmetto Builders, there were registered architectural works copyrights in suit, I think Prof. Patry's rebukes are unduly harsh.

LKB in Houston

William Patry said...

My remarks were intended to make a simple point and were too harsh. I was in a really bad mood when I did the posting, and my mood has gotten worse, but I will try harder not to let it spill over.

I don't know about the quality of the briefing in the court of appeals, but as I mentioned in an earlier posting, the issue was present in the district court. The point is relevant not just semantically but for remedies too.

The point is this. Before 1990, architectural plans were protected as pictorial, graphic, and sculptural works. That protection was limited by Section 113 which precluded extending rights to the built design, and therefore to recovering remedies for profits from the built design, although one can find stray opinions to the contrary.

In 1989-1990, there was a big dispute about whether architectural works were protected under existing law. I thought they were, subject to the separability doctrine. The Copyright Office General Counsel thought not. The compromise was the new Section 102(a)(8), with architectural works being their own form of subject matter, with their own remedies, like profits from infringing buildings, and free of the separability doctrine (although still subject to other limitations on protection). There are in short, very real analytical differences between the two forms of subject matter.

In many (but not all) cases the owner of the architectural plans and of the architectural work will be the same and therefore can collect any remedies provable. But the Office's regulations require separate registrations and separate deposits.

One frequently sees the two classes mixed up and remedies mixed up too. My objection at the district court level and in the lnaguage I quoted from the court of appeals' opinion, is that those distinctions were obliterated.