Is the design of a finished building protected under copyright law? Before 1990, the answer was no. If you were an architect and someone copied your drawings, you could sue for copyright infringement, because the drawings were protected as your graphic works. But if someone built an exact replica of one of your buildings, too bad—three-dimensional works of architecture weren’t covered. You could only sigh and resign yourself to being ripped off.
This gap in the law was exposed to glaring effect in 1988, with a case in the U.S. District Court in the Southern District of New York, Demetriades v. Kaufmann. Cheryl and Nicholas Kaufmann, a couple in Scarsdale, N.Y., admired a large, many-gabled house being built in their neighborhood by Demetriades Developers. The Kaufmanns took photos of the house when it was under construction, were able to get copies of the plans, and asked their contractor to build them the same house. The court found that graphic copying had taken place (the Kaufmanns never denied their intent to replicate the Demetriades design), and ordered that the copied drawings be destroyed. But the house itself was untouchable. It didn’t infringe on any laws. The Kaufmanns had new plans drawn up and finished building it.
As it happened, the law was changed soon after. In 1989, the United States signed an international treaty governing copyright, the Berne Convention for the Protection of Literary & Artistic Works. U.S. officials had to make sure our laws were in compliance with the treaty, which required signatories to protect architectural works. But how do you define a work of architecture? And what makes an architectural design original?
The collaborative effort of legal scholars, architects, and government officials to craft a definition of architecture that would stand up in the courts is the focus of “Un/Fair Use,” a smart little exhibition at the Center for Architecture in New York that runs through Jan. 2. Curated by Ana Miljački and Sarah Hirschman—who teach respectively at the Massachusetts Institute of Technology and the University of California, Berkeley—the show tells the fascinating and unknown story behind the creation of the Architectural Works Copyright Protection Act of 1990 (AWCPA), which brought the U.S. in line with Berne and codified the definition of a work of architecture in American law.
The curators conducted extensive interviews with the people who shaped the law, including Michael Graves—interviewed, poignantly, a few months before his death—and Bill Patry, a former U.S. Copyright Office employee who was instrumental in helping to articulate the creative role of the architect, different from the writer’s in subtle but important ways. Even after it is finished, a building isn’t static; additions and renovations morph the original design to a degree that has no parallel in the literary world (imagine a publisher deciding to do a gut reno of The Great Gatsby). Like the writer, however, the architect often seeks originality by combining standard elements—doors, windows, walls—into new and unexpected arrangements. Deploying a common architectural language doesn’t make a designer any less original than a novelist stringing together words.
“Un/Fair Use” presents the interviews on a row of wall-mounted TVs; visitors can grab headphones and plop down on the white beanbags to watch them. Each one is several minutes long. The full text is also printed in the broadsheet stacked on a table by the gallery’s entrance. This is a wordy show, as befits the topic. A two-page timeline in the broadsheet helpfully sets out the key pieces of legislation and court cases that have affected architectural copyright, Demetriades v. Kaufmann among them.
But the interviews are only one part of the exhibition, which takes up a room and a hallway in the center’s basement. The other part is a series of models created in a graduate research workshop at MIT. Fifty-one of them flank the hallway in long, lit cases, white on white except for the small purple carpets on which the models stand. Despite their dainty size, the models are lacking in detail, and deliberately so—this is a gallery of familiar but multivalent forms—or as the broadsheet explains, “common and therefore uncopyrightable architectural tropes and formal themes.”
Do you feel like you’ve seen a lot of stacked boxes, twisting towers, and Jenga buildings lately? Here’s proof. The center spread of the broadsheet offers a fun key to the models, listing three or four built examples for each trope: Skidmore, Owings & Merrill’s Cayan Tower and BIG’s Scala Tower for “Smooth Twist,” Sou Fujimoto’s Final Wooden House in Japan and Herzog & de Meuron’s 56 Leonard Street in Manhattan for “Jenga,” and so on. In many cases, you can easily name another example yourself, or mentally reclassify buildings that use more than one trope (wouldn’t OMA’s CCTV Headquarters come under “Pants” instead of “Diagrid”?).
Most of the buildings come from the last 15 years, which ignores the rich classical and neoclassical tradition of imitative architecture celebrated by the former London-based architecture firm FAT with “The Museum of Copying,” the firm’s homage to Andrea Palladio that was staged at the Venice Biennale in 2012. The whole history of pattern books and plaster casts is elided in “Un/Fair Use.” But maybe that’s for the best—modernist architects may assume they’ve broken free from that history, but as model after model shows here, they’re just riffing on a different set of conventions.
The presentation of “Un/Fair Use” is clean, perhaps too much so. The show’s two parts never really cohere, and some of the text in the broadsheet could have done useful double duty on the walls. Still, the show, much like the obscure and curiously gripping legal opinions on architectural copyright, rewards the diligent reader. From the videos and interview transcripts, it becomes clear that two architects in particular were central to the creation of AWCPA. One is Graves, who testified on architecture and copyright before Congress, and the other is Frank Lloyd Wright. The Guggenheim Museum was the most important touchstone in the creation of the law, because of its distinctive spiraling form, and because the Frank Lloyd Wright Foundation at one point tried to copyright it.
Where does originality in architecture lie: in a building’s overall form, or in its individual features and their arrangement? It’s possible to see the AWCPA as an accommodation between Graves and Wright. In his testimony, Graves described architecture as a code of visual and spatial elements that architects develop incrementally, from the inside. “There ought to be a consensus of what architecture is and what it isn’t,” Graves told Sarah Hirschman in his interview. “It’s when people go off and do so-called art is when it gets problematic and self-indulgent.”
The argument for copyrighting Wright’s museum would be just the opposite—that its form departs radically from previous traditions of museum design and is therefore original. Fortunately, the law stretched to include both philosophies. It reads: “The work includes the overall form as well as the arrangement and composition of spaces and elements in the design.” So the Portland Building has just as fair a claim to originality as the Guggenheim.
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For Bill Patry, an author of the law, that inclusiveness is key. Patry emerges as the unsung hero of this story, the architecture-loving layman who describes himself as “a huge Louis Kahn fan” and who recognized that Michael Graves was an ideal choice to explain the essentials of architecture to a Congressional committee.
Patry faxed Graves an effusive letter asking him to testify. The story of architectural copyright in the U.S. would no doubt be better known if two other guests Patry invited to Capitol Hill that day hadn’t declined. By all accounts, Graves gave an eloquent performance, but imagine both Ada Louise Huxtable and Robert Venturi, FAIA, also holding forth: now that would have been a memorable hearing.
