The U. S. Court of Appeals for the Second Circuit recently held that buildings that were substantially constructed prior to Dec. 1, 1990, cannot be protected by the Architectural Works Copyright Protection Act ( AWCPA) . Zitz Inc. v. Podlas, 2000 WL 1233292 ( 2d Cir. , Aug. 31, 2000) .

In 1990, Congress enacted the AWCPA to provide for copyright protection for buildings. Prior to 1990, a copyright could be obtained on plans and drawings, but not on the building itself. The AWCPA protects the overall design of a building as well as the arrangement and composition of spaces and elements in the design, but not individual standard features. 17 U. S. C. § 101. To be protected, a building must be a structure that is habitable by humans and intended to be both permanent and stationary, such as houses, office buildings, churches, museums, gazebos and garden pavilions. Structures that are not inhabitable, like bridges, dams, walkways, etc. , cannot be protected under the Act. Standard configurations of spaces and individual standard features, such as windows, doors and other staple building components, also cannot be protected.

By obtaining copyright protection, the copyright owner can prevent: 1) the unauthorized copying of the plans; 2) the construction of a building based upon the plans; and 3) the copying of the design of the building without the plans. See, e. g. , Richmond Homes Management Inc. v. Raintreee Inc. , 862 F. Supp. 1517, 1524- 26 ( W. D. Va. 1994) . The copyright owner cannot prevent the making, distributing or public display of pictures, paintings, photographs or other pictorial representations of the work, if the building in which the work is embodied is located in a public place or is visible from a public place.

The AWCPA provided, however, that it did not apply to any works that were constructed or otherwise published prior to Dec. 1, 1990. In Zitz, a builder started building a home in 1990, but did not completely finish it until after Dec. 1, 1990. Zitz claimed that another builder later copied his plans for the house and built a house from the plans, thereby infringing Zitz s copyright. However, the Court found that the copyright was invalid because the house that Zitz built ( incorporating the design at issue) was substantially constructed prior to Dec. 1, 1990.

The Zitz Court concluded that when Congress excluded buildings constructed prior to Dec. 1, 1990, from protection under the AWCPA, Congress must have intended to exclude buildings that were substantially constructed. The Court reasoned that it is too difficult to determine when a building is completely finished. The Court stated:

[ W ] e think that, with respect to buildings and houses, finished is a term that is hopelessly vague. It is said that the Cathedral of Milan, started hundreds of years ago, is not yet quite finished. Anyone who has built a house knows that the same is all too frequently true even with respect to private residences. While substantially constructed is not itself perfectly clear, we think it is a more practical definition. Zitz at 2.

Assuming the building is constructed after Dec. 1, 1990, copyright protection is immediate upon the work being fixed in a tangible form of expression. A copyright registration is not required until a suit is filed. However, certain types of damages cannot be recovered for infringement occurring prior to the registration.

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