Copyright for visual art, industrial design and architecture: transcript

Key points

• Companies use copyright to protect logos, as Omega did with its Globe design when it sued Costco over parallel imports of cheaply sold watches.
• Useful articles get copyright only if their aesthetic and functional features are separable, either physically or conceptually.
• US courts have developed five approaches to conceptual separability, including function-dictated form, primary aspect, temporal displacement, marketability as art, and designer intent.
• In the Brandeer bicycle rack case, the court found the design was shaped by function and so could be copied.
• The Architectural Works Copyright Protection Act, effective 1990, protects building designs without the separability test.
• The National Museum of Australia resembled Liebeskind's Jewish Museum in Berlin, but the dispute drew public condemnation rather than a lawsuit.

Chapters

1. 0:13Logos and the Omega watch parallel import case
2. 2:05Applied art and industrial design
3. 5:08Useful articles and separability
4. 7:27Five approaches to conceptual separability
5. 10:46The Brandeer bicycle rack case
6. 13:46History of copyright protection for architecture
7. 16:48Architectural Works Copyright Protection Act
8. 17:23Jewish Museum Berlin and National Museum of Australia

Full transcript

0:13A very important category of copyrighted works consists of works of visual art, or as the statute puts it, pictorial, graphical, and sculptural works. Most of the things that fall into this zone are obvious, paintings, posters, statues, and so forth. However, two dimensions of the protection extended to pictorial, graphic, and sculptural works are not obvious and are important. The first is that, nowadays, copyright law is often used by companies to shield the logos that they apply to consumer products.

0:50Here's an example. The Omega Watch Company has obtained a US copyright on the design shown on your screen, which it calls the Omega Globe design. From lecture number one, you should remember how and why a Swiss company can get a US copyright. Right. Omega engraves a version of this logo on the underside of its watches. Which are typically manufactured in Switzerland, but sold all over the world. Typically, Omega sells its watches for lower prices in poor countries than it does in more wealthy countries.

1:27Some years ago, Costco, an American discounter, using an intermediary, purchased some of the watches that Omega had sold cheaply outside the United States, imported them into the United States, and began selling them in Costco's US stores for prices lower than the prices charged by Omega's authorized US dealers. Omega, dismayed, brought suit contending that this so-called parallel importation violated Omega's copyright in the logo, not its trademark or patent rights, but its copyright.

2:05The legal rule underlying this lawsuit and its outcome we'll consider when we discuss the rights of distribution and importation in lecture number eight. For now, I just want to emphasize the expansive reach of the subject matter of copyright and how companies like Omega try to use that expansive coverage to engage in international geographic price discrimination when making their products available in different countries. The second non-obvious dimension of this category involves what is sometimes called applied art or industrial design.

2:40These typically consist of three-dimensional objects that are intended to be both useful and attractive. Objects of this sort permeate modern consumer culture. Just look around the room or space where you are located right now. Most likely, you'll notice many objects that fit this general definition. Possibilities include an unusual lamp, a container of bottled water, a distinctive coffee mug, the shape of a laptop computer or a tablet, your eyeglasses if you wear them, a decorative doorknob or window fixture, a decorative table or chair, and so forth.

3:22Each of these things combines in some way art and function. In the United States, three different systems of law are potentially available to the creators of new objects of this sort, copyright law, design patent law, and the protection of the trademark law extends to so-called trade dress. Some innovations qualify under more than one of these systems, but others fail to qualify under any. It all depends on the shape and history of the particular object, and sometimes on the whims of the tribunal evaluating it.

3:55If you're curious about the potential reach of design patent law or trademark law, feel free to follow those branches of the map on your own using the interactive versions you can get through my website. I'll concentrate here, for obvious reasons, on the possibility of copyright protection for such objects. In the late 19th century, it was clear that copyright law did not extend to works of applied art or industrial design. After 1870, three-dimensional forms of fine art were shielded, but not the kind of consumer products to which I directed your attention a minute ago.

4:32Then gradually, through a series of steps itemized on your map, Congress, the Copyright Office, and finally the courts, liberalized the relevant rules. Today, the governing general principle is that copyright protection is available to so-called useful articles if and only if the aesthetic and functional features of those articles are separable. The first step in applying this principle is to determine whether a particular object qualifies as a, quote, useful article.

5:08The reason why this is so important is that if an object does not constitute a useful article, the ordinary, lenient rules of copyright law apply. Whereas if it does constitute a useful article, it has to pass more stringent tests. So what does the technical term useful article mean? The statute defines it as follows. A useful article is an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.

5:41Some applications of this definition will be straightforward. For example, Rodin's sculpture does not constitute a useful article because its function is to depict itself, to depict, in other words, a thinker. By contrast, a lamp, no matter how beautiful, is a useful article because that is a function other than looking good, namely illuminating a room. In other instances, however, application of this definition is much trickier.

6:13If a particular object is deemed to fall into this special category, then its creator gets copyright protection, to repeat, only if its aesthetic and functional dimensions are separable. How might they be separable? There are two options. The first, which arises rarely, is that the two dimensions might be physically separable. For example, as the treatise writer Melvin Nimmer suggests, the stylized jaguar shape that is attached to the hood of a jaguar automobile enjoys copyright protection because it could be physically removed from the car without impairing its utilitarian function.

6:52Likewise, the utilitarian components of the car could be removed from the jaguar without impairing its aesthetic features. With respect to most useful articles, however, physical separability of this sort is not feasible. The creators of such objects may still obtain copyright protection, but only if they can demonstrate that the aesthetic and utilitarian features are, quote, conceptually separable. What does that mean? The conceptual separability inquiry is the most intriguing and least satisfying aspect of this doctrine.

7:27US courts, as you can see from the map, have developed five distinct families of interpretations of this term. The first of the five approaches asks whether the form of the object at issue is dictated by its function. If so, conceptual separability does not exist. This variant was emphasized by the majority of the judges in the influential 1985 Barnhart case, which involved these two sets of mannequins, which were copied by a competitor without permission.

8:01The majority of the judges in that case contended that the shape of the mannequins was, quote, required by their function, namely displaying clothes in stores, and, consequently, that their utilitarian anesthetic features were inextricably combined. The second of the five approaches asks which aspect of the object in question is primary. So for example, the court in the Caseltine-Cord case, another influential Second Circuit opinion, concluded that the, quote, ornamental aspect of these belt buckles was primary, and their utilitarian function, namely holding pants up, was subsidiary, and thus that they enjoyed copyright protection.

8:45The third approach was made famous by Judge Newman's dissenting opinion in the Barnhart case, which I mentioned earlier. It's commonly known as the, quote, temporal displacement, close quote, test. The key question under this approach is whether the article stimulates in the mind of the beholder a concept that is separate from the concept evoked by its utilitarian function. If so, there is conceptual separability. If not, not. The phrase temporal displacement comes from Newman's contention that the two concepts, utilitarian and non-utilitarian, must occur to the beholder not simultaneously, but separated in time.

9:29Newman's test is intriguing and continues to attract the interests of scholars, but so far, few judicial adherents. The fourth approach asks whether the article at issue can stand on its own as a work of art. If so, it enjoys protection. There are at least two different ways of elaborating this approach. Paul Goldstein suggests that we ask whether the article could constitute a work of art, quote, traditionally conceived, which is related, he argues, to whether the article would be equally useful without its aesthetic feature.

10:06Goldstein's reference to art traditionally conceived naturally draws us back into the debate we discussed in the first lecture concerning the best way of defining art. For the reasons we reviewed there, resolving that question would be difficult, although perhaps unavoidable. By contrast, Goldstein's fellow treatise writer Nimmer points to a more empirical interpretation, asking whether a significant number of copies of the article would be purchased if it had no utilitarian use. This approach was adopted by the Court of Appeals for the Fifth Circuit and the Galliano case, which involved uniforms for employees of the Harrah's Gambling Casino.

10:46The fifth and last of the approaches focuses on the intent of the creator of the article, the individual designer who determined its final shape. This approach was adopted by the Court for the Second Circuit and the Brandeer case, which involved the following interesting facts. David Levine was playing around with some wires, making miniature sculptures in his home. He twisted one wire into the shape of a bicycle and another into the shape of a ribbon, and then placed both, along with some other designs, on his mantelpiece.

11:19A friend of his pointed out that the ribbon shape could serve as a useful rack for the miniature bicycle. Inspired, Levine worked with a friend to refine the design and eventually began manufacturing and selling commercial versions under the company name Brandeer International. This product is depicted on this slide. Here's a blow up of the photo of the rack. And another image showing how bicycles can be locked to it. The rack proved popular, and a competitor, Cascade Pacific Lumber, began producing knockoffs.

11:58Brandeer brought a copyright infringement suit against Cascade. The outcome of the case hinged on whether the ribbon rack satisfies the conceptual separability test. Relying on a 1983 article by the scholar Robert Denicola, the Court of Appeals for the Second Circuit announced the following test. If design elements reflect a merger of aesthetic and functional considerations, the artistic aspects of work cannot be said to be conceptually separable from the utilitarian elements.

12:29Conversely, where design elements can be identified as reflecting the designer's artistic judgment exercised independently of functional influences, conceptual separability exists. Applying this approach, the court ruled against Brandeer, emphasizing several ways in which Levine had modified the shape of the original abstract sculpture in order to make it durable and to accommodate as many bicycles and mopeds as possible. Because the shape of the product did not reflect, quote, artistic expression uninhibited by functional considerations, close quote, it could be copied with impunity.

13:11As one might expect, the net result of the decision is that other companies now manufacture and sell competing versions of the ribbon rack. The approach exemplified by Brandeer now appears to be gaining in popularity among courts. Whether that trend will continue remains to be seen. If it does, one can expect designers of industrial products in the future to include in their designs features unconstrained by functional considerations and with the support of their employers to document their indulgence of their artistic impulses.

13:46There remains one more type of three-dimensional object that now enjoys copyright protection, architecture. Inclusion of architecture in the list was a long time coming, and its implications are still not entirely clear. Here's a bit of background. The original 1886 version of the Berne Convention included architectural plans in the set of things that member countries were obliged to protect, but not architectural works per se. Application of this principle would mean that if you copied the drawings that an architect had prepared to guide the construction of a building, you would be liable for infringement.

14:25But not if you were able to construct an identical building without use of those plans. In 1890, the Belgian scholar Jules de Borsgrave published an article criticizing the state of affairs and arguing that works of architecture deserve protection identical to that employed by other works of art, such as painting and music. Borsgrave's argument slowly took root in European copyright systems, first in Belgium, then in France. For a while, some countries, England and Germany, resisted adoption of this proposal on the grounds that it could prevent replication of ordinary non-innovative buildings and thus would retard development.

15:07But when reassured that the proposal would only apply to, quote, original artistic work, close quote, they acquiesced. A key step in this campaign was the addition of architectural works to Article 2.1 of the 1908 version of the Berne Convention. As you know, the United States did not join the Berne Convention until 80 years later. Until it did so, copyright protection for architecture in this country was skimpy.

15:42Architectural plans were shielded, as they were in most countries, and a few cases took the position that an architect whose plans were copied without his permission could prevent construction of the building using those plans. But the buildings themselves were treated as useful articles, just like the types of industrial design we considered a minute ago. As such, they were subject to the conceptual separability test, Only if the aesthetic components of a building were separable from its utilitarian features did they enjoy protection against non-permissive copying.

16:14Rarely was this true. When the United States did finally join the Bernd Convention, Congress considered whether formally to extend copyright protection to architectural works. It initially decided not to do so, persuaded that the protections available for useful articles were adequate, but it commissioned a report from the Copyright Office, which, when it was issued, urged that the law be modified. And finally, Congress adopted the Architectural Works Copyright Protection Act, which became effective in 1990.

16:48The key provisions of the new statute are set forth on your screen. Notice that it's limited to architectural works, which are defined as the design of a building. Courts in the United States have construed building to be limited to freestanding structures. The most important implication of this new statute is that, in the United States, architectural works no longer have to run the gauntlet of the conceptual separability test. To be sure, like all types of copyrighted work, a piece of architecture must be original to be protectable.

17:23But as we've seen, the standard for originality is soft. Here's an example of a building design that would clearly pass muster. In 1989, the Polish-born architect Daniel Daniel Liebeskind won a competition to design the Jewish Museum in Berlin. Here's a photograph of the building, taken from directly above it, and a second aerial photograph, taken from a slight angle. As you can see, the shape of the building is unusual, a complex zigzag.

17:58Here's how Liebeskind himself explained the structure. His architectural partner and wife, Nina Liebeskind, emphasized the theme mentioned at the end of the second paragraph on your screen, likening the shape of the building to a, quote, broken star of David. In the late 1990s, the Australian architect Howard Ragatt was commissioned to design the new National Museum of Australia, which was to be located on this peninsula in the center of Canberra. Ragatt's much celebrated design is shown in these aerial photos.

18:37Until the Australian Museum had been finished, no one apparently noticed the resemblance between its central building and the Jewish Museum in Berlin. But once the connection was suggested, the parallelism becomes unmistakable. This case never resulted in litigation. Had it done so, it most likely would have resulted in liability for Raggat and the Australian firm. Since 1968, Australian copyright law has extended to, among other things, quote, a building or model of a building, whether the building or model is of artistic quality or not.

19:14Certainly, if this standard were construed in the same way the current US standard is construed, Liebeskin's design would qualify protection, and the Australian Museum resembles it sufficiently to satisfy the legal standard of substantial similarity. The fact that the case, nevertheless, was not litigated bears emphasis. Why not? We can't be sure, but probably two factors were at work. First, copyright litigation is very time-consuming and expensive. As a result, only a tiny percentage of potentially actionable cases ever end up in court. Second, architects, at least high-end architects, seem especially loath to rely on copyright to protect their work. Peer pressure and public condemnation, they seem to think, are more effective mechanisms for discouraging knockoffs. Indeed, such extra-legal sanctions were deployed in this particular controversy.

20:10The Liebeskines publicly expressed outrage, and the press, both in Germany and in Australia, condemned what one paper called, quote, architectural kleptomania. The director of the Australian Museum, who apparently had not known of the relationship between the two buildings, expressed misgivings, publicly acknowledging that, quote, had we known, we might well have asked for that particular reference not to be included, close quote. Interestingly, however, Ragat himself seems to have had no such reservations.

20:45The overall design of the Australian Museum is clearly postmodern in character, alluding to many other structures. Raggett readily admitted to having been inspired by the Jewish museum and does not seem to resist the inference drawn by many observers that he intended to analogize the treatment of aborigines in Australia to the treatment of the Jews in the Holocaust. As one might imagine, that suggestion remains highly controversial in Australia. The more general point latent in this example is that there is not complete consensus, even among architects, concerning the definition and significance of copying.

21:26What to one person constitutes plagiarism or theft, may to another seem quotation or allusion. The law, as we've seen, now sides with the former. Whether it should is one of the questions I hope you'll be in a position soon to answer. This concludes lecture number three. Next week, we'll return to copyright theory, examining in some detail the utilitarian approach. The week after that, we'll return to the law and discuss authorship.

Source and licence

Recording: File:William Fisher CopyrightX Lecture 3 6.webm by BerkmanCenter (2015-01-27), via Wikimedia Commons. Licence: CC BY 3.0.

The transcript is machine speech-to-text by the TidyTools Audio & video transcriber; the summary, key points and chapters were written by Claude from that transcript. Both may contain errors: check the recording before quoting it.