In my previous post regarding trademarked buildings, I noted that Sec. 120 of the Copyright Act allows artists to create two-dimensional cityscapes without fear of copyright liability for infringing a building the design of which is copyrightable. However, there is no such exception for sculptural works in the Act. This raises the possibility that a two-dimensional depiction of a copyrighted building, while not infringing the copyrighted building, might infringe a sculptural work that is part of the building and might reasonably be viewed, to use copyright parlance, as “conceptually separable” from the building itself.
I submit that courts already have enough trouble applying the convoluted conceptual separability doctrine to determine whether a work is merely utilitarian (e.g. a plate) or a work of art that qualifies for copyright protection. It is questionable whether our copyright law should encourage judges to engage in philosophical discussions about the nature of chairs, but I am quite sure that it is a mistake for them to be trying to sift through whether sculptures are intrinsically part of buildings.
This very issue arose after the release of the movie “Batman Forever.” The case, which went to the Ninth Circuit, shows that the Copyright Act does not clearly set forth how this issue should be treated. And, of course, it shows that the issue is a real one that is deserving of serious thought and action by Congress to clarify the issue.
The case arose after, as the Ninth Ciruit put it, “the 801 Tower in downtown Los Angeles and four towers that form its streetwall on the south side of the building became the Second Bank of Gotham in Batman Forever.” While Warner Bros., the movie studio that financed Batman Forever, obtained a release from the building’s owner, they did not obtain a release from Andrew Leicester, the sculptor that created the towers depicted in the film. Accordingly, he brought suit against Warner Bros. for using his copyrighted work without a proper license.
Warner Bros. defended on the basis that Leicester created the sculptural works in 1994, after the 1990 passage of the 1990 Act allowing for copyrights to attach to copyrighted work but also allowing for the creation of two-dimensional depictions of such works. Warner Bros. argued that the sculptures were part of the architectural concept of the building and that it was a mistake to viewing them as conceptually separable. Leicester countered by arguing that the works were not functional, were not inhabitable, and were indeed conceptually separable from the building.
The three judges that formed the panel assigned to the case could not agree on how the case should be resolved, and issued three separate opinions. Judge Rymer’s opinion upheld the findings of the district court that the sculptural works were part of the building. She noted that expert testimony had supported a finding that some of Leicester’s work had functional attributes. In any event, she interpreted the district court as holding that the work was not conceptually separable, a finding that she held was supported by the record.
Judge Tashima differed with Judge Rymer’s analysis on the conceptual separability question. In his view, the district court never directly reached the conceptual separability question but did find that, following the 1990 Act, the doctrine of conceptual separability should not be applied to buildings. Judge Tashima agreed. Thus, Warner Bros. was not held liable in this case.
The dissent by Judge Fisher argued that the traditional doctrine of conceptual separability should be applied. It cited to legislative history in support of this result; Judge Tashima’s opinion also analyzed legislative history, coming to a different result.
Congress clearly recognized the importance of allowing sculptural works to be depicted in books and films and the legislative history is clear on this point. It is true that it did not explicitly state that the 1990 Act was changing the state of law so that the conceptual separability doctrine no longer applied to buildings. But the policy underlying the Act’s exception for two-dimensional depictions of architectural works is clearly in this spirit.
Congress at some point would be wise to make it explicit that Courts should not engage in the conceptual separability analysis at all in cases such as these. Buildings are properly viewed as part of the public landscape. It is true that sculptors might not be able to receive licensing fees for movies such as Batman Forever. Nevertheless, clarifying the law will give fair notice to sculptors that this is so; and, one suspects, architects will still be able to find sculptors when necessary to complete their projects. More importantly, neither the public nor the courts will need to be concerned that a movie or a depict in fact amounts to copyright infringement because one part of a building might be deemed a sculpture.