Wednesday, July 11, 2007

To boldly infringe

This story about a British man who rebuilt his apartment to resemble the interior of the starship Voyager, then sold it for a tidy sum, raises both copyright and trademark questions. For trademark: Is interior design a market consumers would expect the Star Trek franchise to enter? For copyright: Can there be copyright in an architectural work constructed as a set? The set of Star Trek: Voyager was apparently the Next Generation set, which would have been constructed before the US started protecting architectural works in copyright. Another possibility would be to claim copyright in the interior as a compilation, a strategy that’s worked for at least one museum curator in Europe.

4 comments:

Anonymous said...

Re: copyright. I don't think you'd have an architectural copyright claim even if the "building" was created after the effective date of the AWCPA.

An architectural work, as defined in the post-AWCPA Copyright Act, is for the design of a *building.* Is a set for a TV show a "building"? Probably not -- best analogous caselaw is the Yankee Candle case and a recent EDTx case. In those decisions, the design of particular stores or kiosks inside pre-existing shopping malls were ruled not be architectural works, because they were for the design of "buildings." The nub of these decisions was that mere interior design, when not coupled with the design of an actual building, isn't protected as an architectural work. That's precisely what's going on here.

I don't understand the compilation copyright theory, at least under US law. (What's it a purported compilation of?) Indeed, expecially given that the purported "work" would be pre-AWCPA, why wouldn't it run into the same Baker v. Selden problem that vexed architects prior to the AWCPA? These kinds of arguments didn't work for them prior to the AWCPA.

LKB in Houston

Rebecca Tushnet said...

Fair point about the architectural work, but I think the compilation copyright theory requires some thought. The argument accepted in Europe is that an artistically motivated selection, coordination and arrangement of design elements in a nonfunctional way -- and if anything is nonfunctional, it's got to be the bridge of the starship Enterprise -- can be protected by a copyright. There's only a Baker v. Selden problem if the choices are constrained by some physical requirement, but the elements this fellow copied don't seem to be functional, or mere expressions of a system. Just as a particular dollhouse could be protected (though not the idea of a dollhouse), I find it plausible that a creative arrangement of design elements in a full-size interior could be protected.

Anonymous said...

While I recognize the European perspective, it was pretty much rejected by US courts prior to the AWCPA . . . see the Register of Copyrights 1988 Report to Congress on this. Whether such cases correctly applied Baker v. Selden is certainly debatable, but that they generally refused protection to building designs is not.

Put another way, for US courts to accept the "compilation" argument for pre-AWCPA works would essentially mean that the AWCPA was unnecessary. Why did Congress need to change the law at all if one could have obtained protection for building designs by simply terming them "compilations"? As the aforementioned Report and the legislative history of the AWCPA make pretty clear, that just wasn't the case: for many reasons -- not all of them rational or logical -- US law didn't protect building designs as such.

But what about post-AWCPA works? The "compilation" argument would effectively extend copyright protection beyond the narrow scope that Congress dictated in the AWCPA (i.e., beyond post-1990 "buildings"). That would violate basic canons of statutory construction.

The "compilation" argument may have some academic and logical appeal. However, from my rather limited perspective as an AWCPA litigator, it won't fly in court.

Best regards,

LKB in Houston

Rebecca Tushnet said...

Far be it from me to claim that US copyright covers everything under the sun -- I like your argument from long-time practice a lot. But given the lack of exclusion in the statute, and the way copyright claimants have staked out ever more territory (copyright in single prices as compilations as an example), I would worry about similar expansiveness in a case of this type, which might involve good facts given the creative and non-architectural (in the ordinary sense of the word) expression involved in creating the set of the Enterprise. (I'm also reminded of the increasing number of copyright claims in the staging of plays by directors, with the set as one element of what the directors claim to own.)

Great discussion -- thanks for commenting.