These models (there are 50 total) illustrate which shapes and styles can be fairly used, and which ones pose a problem. This "single surface" model,
for instance, is up for fair use. OMA, Diller Scofidio + Renfro, and MVRDV have all employed it in their designs. photo by ELISABETH BERNSTEIN
IN 2004, A recent graduate of Yale’s Master of Architecture sued David Childs, a high-profile architect and partner at Skidmore, Owings, & Merrill.
The dispute was over Childs’ design for One World Trade Center, then-dubbed the Freedom Tower. Thomas Shine, the former student, claimed
that Childs had ripped off Shine’s Olympic Tower design, which he’d submitted as a studio project.
In Shine v. Childs, both parties ultimately withdrew their claims, but not before a judge weighed in on a few significant copyright matters. For one,
the twisting, undulating shape of the Freedom Tower was similar enough to Shine’s design to suggest infringement. Second, and perhaps more importantly,
it didn’t matter that Shine hadn’t developed a technical, structural scheme for the Olympic Tower. Even conceptual renderings can be protected under copyright law.
A court’s ruling, in other words, is based on whether it recognizes originality or not. It’s murky territory.
The thing is, appropriation in architecture is not new, nor is it always bad. “Forms of copying, parodying, and critiquing are at the center of the discipline;
they are as important to the discipline as novelty,” says Ana Miljački, a professor of architecture at MIT. Along with Sarah Hirschman, a designer and UC
Berkeley Department of Architecture lecturer, Miljački has curated an exhibit that seeks to draw a better line between permissible and plagiaristic types of
architectural copycatting. “What I find problematic as a teacher is that the definition provided by law… separates use and usefulness,” Miljački says. “We teach
that use and expression are fused together. If you were to design by copyright law, it would produce a strange object.” Because the law separates utility from invention,
teaching according to it “could easily lead to a kind of status quo base and an appliqué of stylistic expression.” Unique architectural forms—ones that are both functional
and artistic—would be harder to produce.
Un/Fair Use, up at the Center for Architecture in New York City until January 2, 2016, is presented in two halves.
On one side of the exhibit you have what Hirschman and Miljački are calling “fair use moves,” all represented by 3-D models.
These are “tropes or idioms you can work within, employ, use yourself,” Miljački says. Like housing styles or typologies, these cannot be copyright protected.
On the other side you have “unfair moves,” presented through an abridged history of architectural case studies in copyright infringement.
Copyright itself is old; the government passed the U.S. Copyright Act in 1790 to protect authors of maps, charts, and books from intellectual poaching.
Architecture, however, didn’t get similar acknowledgement until 1990 when Congress passed the Architectural Works Copyright Protection Act.
This area of the law hasn’t had its Brown v Board of Education moment—there has not yet been a watershed case that’s propelled significant
change in one direction or another. Rather, each case has built incrementally on the last, by providing new, more specific insights.
Architectural copyright is difficult because the buildings (or renderings) in question have to go through tests to determine substantial similarity.
“There’s the ‘total look and feel’ test, where you have an ordinary person like a juror look at the two works side by side, and say, ‘do these things
look substantially similar?’ “ says Jeffrey Reichard, who practices construction and copyright law in Greensboro, S.C. “The other is the abstraction,
filtration, comparison test where you basically look at only the protectable elements of a design.” This results in what Reichard says is a thin copyright protection.
Hirschman agrees: “In visual art it’s clear that there are broad protections,” she says. “For architecture, every single infringement claim needs to be teased apart
and combed through to look at what they call ‘off-the-shelf’ or ‘component parts’ to find out where the architects’ originality lies.”
Take the case of Trek Leasing v The United States from 2005. Two architects designed two different post offices opened in Arizona.
One architect alleged that the other had stolen his design, and the case went to court. The case was practically a design autopsy:
it included testimony from architecture professors who dissected details as granular as the Pueblo Revival style of the window lintels on the buildings.
Other officials had to weigh in, because U.S. post offices come with certain building requirements, meaning these structures might have involved less
architectural creativity than others. In the end, the judge ruled that the original post office bore no signs of originality, and therefore couldn’t be infringed upon.
“Every time these cases come up we learn something,” Miljački says. Much of what’s covered in Un/Fair Use is untrodden ground.
The pace of the Internet doesn’t always help clarify the issue. “In the last five years in the blogosphere there have been a lot of
questions and pronouncements of copying—of Zaha [Hadid] being copied by the Chinese pirates, and so on—but it’s a question of law.” One that is, no doubt, still evolving.
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