Washington Law Review


The Architectural Works Copyright Protection Act of 1990 (AWCPA) extended copyright protection to architectural design as part of Congress's effort to conform U.S. law to the Berne Convention. U.S. courts previously had treated architecture as a "useful article" and generally had denied it protection under the "separability" doctrine. The AWCPA treats architecture similarly to other categories of copyrightable subject matter. Conceptually, this is inappropriate because (I) architectural design is a professional service, (2) architecture is a part of our public environment, and (3) architecture's expressive aspects cannot be adequately separated from its useful aspects. As a practical matter, the AWCPA imposes costs on architects that outweigh the benefits that it confers on them. To help alleviate this result, the AWCPA should be amended to limit protection to designs with artistic or aesthetic expression. Nevertheless, architects working under the AWCPA should alter their relationships with their employees, consultants, and clients to minimize liability for infringement.

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