Assignment 3 Flashcards
Builder walked through an upscale home. He made notes about its design features and construction. He then created architectural plans based on the home and built it. The house was the same layout and design as the original, although the exterior looked different. Has Builder violated the copyright in the architectural designs? Explain your answer.
No, Builder has not violated the copyright in the architectural designs because he did not copy the architectural design plans themselves. Rather, by building a house based on his own notes and observations of the upscale home, Builder copied the home itself. The home is a work separate from the architectural design plans. Whether or not Builder violated the copyright in the home will then depend on whether the home itself has a valid copyright. In most cases, barring exception unique features, homes will generally not be afforded copyright protection.
May I take a photograph of my neighbor’s house across the street and sell copies of the photo without violating copyright law? Consider, 1) whether there is a copyrightable interest in the house; and 2) assuming there is a copyrightable interests, would this be permitted? Explain you answers and cite statutory provisions.
Whether there is a copyrightable interest in the house depends on whether the house qualifies as an architectural work under §102(a)(8) of the Copyright Act of 1976. The test for determining whether a building qualifies for copyright protection as an architectural work is discussed in question 4.
If your neighbor’s house did have a copyrightable interest, taking a picture from across the street would not pose a problem in terms of copyright law. Under §120(a) of the Copyright Act of 1976, photographs of a copyrighted architectural work is permitted so long as the architectural work is ordinarily visible from a public place.
If Builder built a residence that qualified for copyright protection, could Owner who purchased the house, later remodel it without concern about copyright law? Explain your answer.
Yes, Owner would be able to remodel the house without concern for copyright law. Under §120(b), an owner of an architectural work may make alterations to such work or even destroy the work without permission from the author or copyright holder.
What is the test for determining whether a building is entitled to copyright protection as an architectural work?
The test for determining whether a building is entitled to copyright protection as an architectural work is a two step process. First, it must be determined if there are any original design elements present in the work. If no such design elements are present, the building is not entitled to copyright protection as an architectural work. If original design elements are present, such elements must be examined in order to determine whether they are functionally required or not. Design elements that are functionally required are not entitled to copyright protection and thus the building would not likely be entitled to copyright protection as an architectural work. If the design elements are indeed original design elements, then the building is likely to be entitled to copyright protection as an architectural work.
Cite the statute governing copyrightability of government works.
§101 of the Copyright Act of 1976 provides the definition for “a work of the United States Government.” The definition works in conjunction with §105 of the Copyright Act of 1976 in governing the copyrightability of government works.
Give an example of a work published by the United States that could qualify for copyright protection.
A work published by the United States could qualify for copyright protection if the government contracted with a non-government employee or contractor to produce the work. After such employee created the work, the copyright protection in the work could then be assigned back to the United States. §105 does not preclude the United States Government from “receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.”
If a state adopts a model code, can I reproduce that code and sell copies of it? Please explain your answer and quote a case.
Yes, if a state adopts a model code, you could reproduce that code and sell copies of it. In Building Officials & Code Administrators Int’l, Inc. v. Code Tech., the court “concluded that privately drafted codes that are subsequently incorporated into state law might be ineligible for copyright.” Building Officials & Code Administrators Int’l, Inc. v. Code Tech., 628 F.2d 730 (1st Cir. 1980). Further, the Veeck court stated “our short answer is that as law, the model codes enter the public domain and are not subject to the copyright holder’s exclusive prerogatives.” Veeck v. Southern Building Code Congress Int’l, Inc, 293 F.3d 791 (5th Cir. 2002).
Can a character in a fictional work be subject to copyright protection? Please explain your answer.
Yes, a character in a fictional work can be subject to copyright protection if such character is not a stock character. Stock characters are characters that are common traditional characters that are used by a certain culture or time period. Such stock characters are not subject to copyright protection.
Can a play infringe another’s copyright without quoting a single word from the protected work? Explain your answer and cite a case in support of your answer.
Yes, a play can infringe another’s copyright without quoting a single word from the protected work. The infringement can happen when the play uses the same characters and ideas contained in the plot of the original play. When examining the two plays for potential infringement, the court will focus on the similarities of the play, rather than the differences. The court may also use the abstraction test, which will compare generalizations between the plots of the two works. Whatever ideas are left after the abstraction test are performed are considered to be just ideas that are not subject to copyright protection. The case that supports this answer is Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49 (2d Cir. 1936). The Sheldon court held that the defendant’s movie shared too many similar elements with the plaintiff’s play and thus the defendant engaged in infringement.
