Our recent post about the Freedom Tower copyright infringement claim begs this question: what is the scope of copyright in architectural works?

After all, architectural works are normally useful articles which would be excluded for copyright protection.

But note that the exclusion for useful articles is narrower and specifically applies only to "pictorial, graphic, and sculptural works." 17 U.S.C 101.

Architectural works are a separate category of copyrightable subject matter, 17 U.S.C. 102(a)(8), and are defined as the design of a building embodied in any tangible medium, including a building, architectural plans, or drawings.  The work includes the overall form and the arrangement and composition of spaces and elements in the design, but not individual standard features. 17 U.S.C. 101.

In addition, and as generally true with all copyrightable subject matter, the copyright does not extend to the ideas, concepts, methods of operation or principles embodied in the work.  17 U.S.C. 102.

The owner of the copyright in an architectural work holds certain exclusive rights, including most importantly the right to make copies of the work and the right to prepare derivative works based on the copyrighted work. 17 U.S.C. 107. 

The concept of derivative works encompasses any modifications to the work which result in an original work of authoriship.  Thus, in the context of a building, any modification of a prior building design could potentially be deemed a derivative work. 

There are special limitations on the scope of copyright in an architectural work.  The copyright does not include the right to prohibit the taking and display of photographs of buildings visible in a public place. 17 U.S.C. 120(a).  In addition, the owner of a building may alter or destroy the building without consent of the copyright owner.

Those who hire architects or other designers should be mindful that the purchase of the building does not automatically include transfer of the copyright in the work.  Rather, ownership of the copyright remains with the author unless there is a written transfer of the copyright or unless the design is an employee of the building owner.

Architects likewise should realize that they, or the firms by whom they are employed, are the owners of the copyright in the works they create, and not the clients.