False Promises

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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5 Responses

  1. Until the AWCPA, architectural works were part of the “useful article” exception from copyright. The AWCPA’s inclusion of architectural works could equally well be characterized as restoring parity between architectural works and other more traditionally copyrightable forms of creativity.

    Architectural works are still not copyrightable to the extent that their form is actually functionally determined (this is a consequence of the merger doctrine). The effect of the AWCPA was only to remove architectural works from the broader useful-article rule, which excludes even non-functional aspects of useful articles from copyrightability.

    It’s still legal to take pictures of or make paintings of architectural works.

    The AWCPA doesn’t “only” redistribute income from the public domain to architects. It redistributes it from some architects to others.

    There are also moral arguments, entirely separate and apart from the utilitarian arguments, that are used to justify architecture and fashion copyrights.

    Don’t get me wrong; there are lots of problems with architectural copyright. (Here’s one of my favorite horror stories.) The AWCPA is dreadfully drafted, and courts have done dreadful things misinterpreting it. The story is just more complicated than you make it out to be.

  2. Bruce Boyden says:

    James is right about photos: 17 U.S.C. s 120(a) permits them, as long as the building is visible from a public space (I read that as meaning any photo of such buildings is OK, no matter where taken from).

    Re: architectural works and fashion, I think the argument for protecting them is the same, namely, desert — both are creative works that “deserve” protection, just like any other artwork. The idea that particularized economic incentives are the sole legitimate justification for copyright misses part of the story, I think. That’s not to say that I necessarily support fashion design protection or even architectural works protection.

  3. Marc Halberstram says:

    I think this article makes a mountain out of a mole hill.

    The AWCPA didn’t change all that much. It did however, extend EXTREMELY limited protection to the spacial elements of certain buildings beyond what was allowed by suing for infringement of the architects plans.


  4. Theresa Esquerra says:

    Actually, the bills introduced in the 1930’s and beyond were to protect, otherwise unprotected at the time, textile patterns (i.e. prints on fabric) NOT the overall shape of the garments which is being asked for today. And textile patterns did become protected after Mazer v. Stein and the concept of separability was introduced. Right after Mazer was decided the Copyright Office issued a new policy saying that they would register artistic textile patterns. It didn’t end the world, neither will today’s law to protect the overall shape of the garment.