926.2 Copyrightable Authorship in Architectural Works
The U.S. Copyright Office may register an architectural work if it is a habitable structure that is stationary, intended to have permanence, and intended for human occupancy. 37 C.F.R. § 202.11 (B) (2). Examples of works that satisfy this requirement include houses, office buildings, churches, museums, gazebos, and pavilions. By contrast, the Office will refuse to register bridges, cloverleaves, dams, walkways, tents, recreational vehicles, or boats (although a house boat that is permanently affixed to a dock may be registrable as an architectural work). Id. § 202.11 (D) (1).
The Copyright Act protects “the overall form [of an architectural work] as well as the arrangement and composition of spaces and elements in the design.” 17 U.S.C. § 101 (definition of “architectural work”). This may include “the overall shape of an architectural work.” H.R. REP. NO. 101-735, at 21. It may include interior architecture. Id. It also may include the “selection, coordination, or arrangement of unprotectable elements into an original, protectable whole,” as well as “new, protectible design elements [incorporated] into otherwise standard, unprotectible building features.” Id.
Copyright does not protect individual standard features, “such as common windows, doors, and other staple building components.” Id. Nor does it protect interior design, such as the selection and placement of furniture, lighting, paint, or similar items, although a pictorial, graphic, or sculptural representation of an interior design may be registered if it is sufficiently original. Finally, functional elements whose design or placement is dictated by utilitarian concerns are not copyrightable.
• Archer Anthony attempts to register a unique birdhouse. The registration specialist will refuse to register this item as an architectural work, because a birdhouse is not designed for human occupancy.
• Archibald Arnold attempts to register a moveable, fast-food kiosk for use in shopping malls. The registration specialist will refuse to register this item as an architectural work, because the kiosk is not permanent and stationary.
• Arlinda Atkins designs a condominium complex with a large, complex parking structure and intricate landscape design. She attempts to register each aspect of this design as an architectural work. The registration specialist will register the condominium design if it is sufficiently original, but will ask the applicant to remove the reference to the parking structure and landscape design.
While buildings are intrinsically useful, the statutory limitations and restrictions on useful articles only apply to pictorial, graphic, and sculptural works. The design of a building may be considered an “architectural work” under § 102 (A) (8) of the Copyright Act if it is sufficiently creative, but that design would not be considered a pictorial, graphic, or sculptural work. Consequently, architectural works are not subject to the separability test described in Section 924.3. See H.R. REP. NO. 101-735, at 20.
When examining an architectural work for copyrightable authorship the Office applies a two-step test. The registration specialist will examine the work to determine “whether there are original design elements present, including [the] overall shape and interior architecture.” Id. If so, the specialist will “examine whether the design elements are functionally required.” Id. at 20-21. “If the design elements are not functionally required, the work is protectable” and may be registered as an architectural work. Id. at 21. As with any other work of the visual arts, the specialist will not consider the novelty, ingenuity, or aesthetic merit of the work. Id.