1

(ii)

iii)

distributor. The requirement of consultation with the Director, as set forth above, shall not apply where no editing is done by the network or in any case in which the exigencies of time do not permit, or if the Director does not make himself or herself available at the time and place designated as aforesaid.

The Director's services in connection with consultations shall be provided at the time and place specified in the notice at no cost to the network or Employer or the distributor.

The consultation rights of this Paragraph 7-509 shall apply to all editing of a theatrical motion picture released for such network exhibition. For this purpose only, the word "editing" includes placement of or changes in commercial breaks, interruptions, and promotional announcements.

!f a motion picture is licensed by Employer for United States syndication and Employer edits such motion picture at its own facilities, the Director, if available, shall have the right to edit the motion picture if no additional costs are thereby incurred.

If the Employer desires to have new footage shot and added to the motion picture beyond the theatrical version, the Director (subject to reasonable availability) shall be offered employment to shoot such new footage as and to the extent required by Employer at a daily compensation rate no less than one-half of the Director's initial daily compensation rate on the motion picture.

Employer agrees not to license or edit or authorize any licensee to edit feature length theatrical motion pictures in versions of less than two hours duration or the length of the picture as released for general theatrical exhibition, whichever is lesser, (except for Standards and Practices requirements) for in-flight use as defined in subparagraph 18-102 (b) (e.g., to avoid 45minute versions of motion pictures previously licensed as theatrical films for use on Continental Airlines). In the event of any inconsistencies between the provisions of this subparagraph and the balance of Paragraph 7-509, then the provisions of this subparagraph shall control.

The provisions of this Paragraph 7-509 shall also apply if a theatrical motion picture is licensed by Employer for domestic videodisc/videocassette distribution.

Mr. Chairman and members of the Subcommittee, my name is David E. Lawson, FAIA.
I appear today on behalf of The American Institute of Architects, the
professional association representing this nation's architects. I have been a
practicing architect for 26 years and I have served on the AIA Board of
Directors as well as Vice President of the American Institute of Architects. We
appreciate this opportunity to express our views on legislation to implement the
provisions of the Berne Convention affecting architectural works.

INTRODUCTION

Copyright protection for architectural works under U.S. copyright law is significantly different from the protection provided under the laws of the other nations that have signed the Berne Convention. Implementation of the Convention would require that the U.S. law be made compatible with the laws of other signatories, and legislation has been introduced to do this. The AIA supports implementation of the Berne Convention's protection of architectural works, and generally favors the legislation designed to accomplish this purpose. At the same time we have reservations about several of the provisions contained in the different legislative proposals. My testimony will explain those reservations.

CURRENT U.S. COPYRIGHT LAW

Neither architectural works nor architectural drawings are explicitly mentioned in current U.S. copyright law. It is generally recognized, however, that the law protects drawings under the pictorial, graphic, and sculptural works

category.1

Some authorities have argued that current law could be interpreted to go beyond architectural drawings to protect (1) the construction of a building depicted in the plans even if the drawings are not copied, as well as (2) the actual structure shown in the drawings.2 Case law, however, has clearly established that only architectural drawings are copyrightable. A copyright is infringed when the drawings are copied.

1

1

17 U.S.C. 102 (a) (5). See also Notes of the
Judiciary, House Report No. 94-1476, 94th Cong. Sess.
(1976), p. 55, which states in part "[a]n architect's plans
and drawings would, of course, be protected by copyright..."

2

Shipley, Copyright Protection for Architectural
Works, 37 S.C.L. Rev. 393 (1986).

Notes of the Committee on the Judiciary in House Report No. 94-1476 indicate that with regard to pictorial, graphic, and sculptural works there is "no implied criterion of artistic taste, aesthetic value, or intrinsic quality." The subject matter provisions of current law expressly protect "original works...in any tangible medium of expression."3 These provisions also expressly exclude the protection of an idea.

Case law has offered the following interpretations of our copyright law with regard to architectural drawings.

O "While the concept of a T-shaped building is not entitled to copyright protection, detailed plans and drawings of a specific building are."4

O "A person cannot, by copyrighting plans, prevent the building of a house similar to that taught by the copyrighted plans. One does not gain a monopoly on the ideas expressed in the copyrighted material by the act of registering them for a copyright. A person should, however, be able to prevent another from copying copyrighted house plans and using them to build the house.5

A contractor's reproduction of an architect's drawings for use on a subsequent project has been held to be an infringement of the architect's copyright and not a fair use.6

о Federal courts have held that drawings and specifications prepared by an architect are not "works made for hire."7

Nucor Corporation v. Tennessee Forging Steel Services,
Inc., 476 F.2d 386, 390 (8th Cir. 1973).

5

Herman Frankel Organization v. Tegman, 367 F.Supp.

1051, 1053 (E.D. Mich., S.D. 1973).

6

Aitken, Hazen, Hoffman, Miller, P.C. v. Empire
Construction Company, 542 F.Supp. 252, 260 (D.Neb. 1982).

7

Aitken, Hazen, Hoffman, Miller, P.C., supra, and
Meltzer v. Zoller, 520 F.Supp. 847 (D.N.J. 1981).

Since current copyright law offers limited protection for architects, the profession has looked to its contract documents as an additional aid. In the traditional architect-client relationship, the architect is an independent

contractor--not an employee.

The Standard Form of Agreement Between Owner and Architect is published by the AIA and enjoys wide acceptance. This agreement clearly states that "unless otherwise provided, the Architect shall be deemed the author of these documents and shall retain all common law, statutory and other reserved rights, including the copyright." Further, "[t]he Architect's Drawings, Specifications or other documents shall not be used by the Owner or others on other projects, for additions to this Project or for completion of this Project by others...except by agreement in writing and with appropriate compensation to the Architect."

Similar language appears in the AIA document, General Conditions of the Contract for Construction. Because in the traditional construction situation there is no contractual relationship between the architect and the general contractor, this document is normally adopted by reference into other agreements including the owner-contractor and the contractor-subcontractor agreements. This is done in order to establish a common basis for the preliminary and secondary relationships on the typical construction project.

These provisions accomplish some very important purposes. They secure the creative integrity and reputation of the architect, protect the architect's economic interests and address serious liability concerns. These provisions can help the architect prevent the modification of drawings and specifications by others--modifications that could compromise structural or aesthetic integrity and ultimately place the architect whose seal is on the drawings in a difficult

liability position.

PROPOSED CHANGES IN U.S. COPYRIGHT LAW

Having summarized the status of copyright protection for architects under current law, I would now like to comment on the three bills to implement the Berne Convention. Each is entitled the Berne Implementation Act of 1987.

American architects make significant contributions to the arts and the quality Architects' contributions are at least as significant

of life in our society.