T-Peg and Timberpeg East v Vermont Timber Works and Douglas S Friant
This was an appeal from the United States District Court for the District of New Hampshire. It was decided by three judges. The three judges were Torruella, Lynch and Howard. The Hon. Circuit Judge Lynch wrote the judgment. This case was the first occasion to address a copyright infringement suit under the Architectural Works Copyright Protection Act (AWCPA). The court laid out the requirements for a claim of copyright infringement.
(A) Copyright Infringement
Under the Copyright Act copyright protection subsists in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated. That is either directly or with the aid of a machine or a device.
See: 17USC section 102 (a)
An architectural work is a work of authorship. A copyright holder has certain exclusive rights to the work. This includes the right to reproduce all or any part of the copyrighted work.
See: section 106
To establish copyright infringement under the Copyright Act two elements must be proven:
1. ownership of a valid copyright; and
2. copying of consistent elements of the work that are original.
The second element of the test involves two steps. The plaintiff must show:
(a) that the defendant actually copied the work as a factual matter, either through direct evidence or through indirect means;
(b) that the defendants copying all the copyrighted material was so expensive that it rendered the infringing and copyrighted works substantially similar.
The court discussed the Architectural Works Copyright Protection Act.
The Architectural Works Copyright Protection Act
To ensure the United States compliance with the requirements of the Berne Convention the AWCPA was signed into law on 1 December 1990. Architectural works was added as a new category of copyrightable works.
See: 17USC section 102 (a)(8)
The definition of an architectural work provides for firstly an architectural work as the design of a building as embodied in any tangible medium of expression. Tangible medium of expression is defined as a building, architectural plans, or drawings. Originally there was a concern that a defendant with access to the plans or drawings could construct an identical building but escape liability so long as the plans or drawings were not copied. To close this potential gap, the bill was it reworded to expand the definition of an architectural work to encompass a building design as embodied in any tangible medium of expression.
An individual creating an architectural work by depicting that work in plans or drawing will have two separate copyrights.
One will be in the architectural work (section 102 (a)(8)), the other in the plans or drawings (section 102(a)(5)).
A second component of the definition of architectural work is that it includes the overall form as well as is the arrangement and composition of spaces and elements in the design.
See: 17USC section 101.
The phrase ‘arrangement and composition of spaces and elements’ takes into account that:
(1) creativity architecture frequently takes the form of a selection, coordination, or arrangement of unprotectible elements into an original, protectable whole;
(2) an architect may incorporate new, protectable design elements into otherwise standard, unprotectable building features; and
(3) interior architecture may be protected.
Finally, the definition excludes from the protectable architectural work individual standard features. Examples of such individual standard features are:
1. common windows,
2. doors, and
3. other staple building components.
Nonstandard individual features reflecting some amount of originality are not necessarily excluded from copyright protection. While individual standard features may not individually be copyrightable, the combination of such standard features may be copyrightable.
Under the Copyright Act pictorial, graphic, and sculptural works include works of artistic craftsmanship in so far as their form is concerned. Their mechanical or utilitarian aspects however are excluded. The requirement that the protectable elements of a pictorial, graphic, or sculptural work be separated from the utilitarian aspects of the work is known as the separability test. Such a separability test for determining the copyrightability of architectural works was not included.
