Please ensure Javascript is enabled for purposes of website accessibility

Foiled again . . . Batman defeats claims of building copyright infringement (81563)

“Holy flying copyright, Batman. You, an infringer≠” wondered the Boy Wonder.

“Not so fast, Robin. Things aren’t always what they seem,” replied the Caped Crusader.

Is Batman an infringer≠ Will his superhero status be revoked≠ Is the Boy Wonder vicariously liable≠ You won’t have to tune in next week for the answer.

Robin had good reason to question Batman after the downtown Los Angeles 801 Tower Building became the Second Bank of Gotham in the movie “Batman Forever.” When this pre-1990 building was constructed, the city required that the building contain many artistic elements that would qualify as art. These artistic elements were comprised of separate works intended to tell an allegorical story of the history of Los Angeles and included gates, a park and embellishments on the building’s four towers.

Warner Bros. took care to film only the street wall portions of the building, leaving most of the artistic elements that comprised the courtyard and other aspects of the structure unfilmed. A small model showing portions of the building was built for special effects.

While attorneys for Warner Bros. requested — and received — permission from the building’s owner prior to filming, neither the artist responsible for the artistic elements nor the architect were consulted.

The artist did not write a rave review of the movie. Instead, he sued Warner Bros. for copyright infringement, alleging that elements of his copyrighted work were reproduced in the film without permission.

The 9th U.S. Circuit Court of Appeals had to wrestle with the question of whether this building was subject to copyright protection and whether Warner Bros.’ actions amounted to copyright infringement. Thankfully for the side of right and justice, Batman was found innocent of infringement.The right to photograph

Prior to 1990, the copyright law did not protect a constructed building as a “sculptural work” or anything else. Architectural plans were protected, and so were sculptures such as statues. But if a building were constructed prior to 1990, the only way infringement could occur would be if the plans or drawings for the work were reproduced. Elevations and interiors of a building constructed before 1990 could be photographed and measured, and from those results, plans could be created from which a building legally could be constructed.

All that changed when the United States joined the Berne Convention for the Protection of Literary and Artistic Works. To fulfill its treaty obligations, Congress passed the Architectural Works Copyright Act of 1990. The result was a new category of protectable work: a finished building.

To affect this result, the Copyright Act was amended to include as an architectural work, “the design of a building as embodied in any tangible medium of expression, including a building … .” The overall form, arrangement and composition of the space also were protected.

Architects and developers at last had a law they could rely on to protect their buildings from unauthorized copying.

Still, there is an important distinction between an architectural work and a “pictorial, graphic and sculptural work,” and that is that the former can be photographed while the latter cannot. While an unauthorized photograph of a three-dimensional piece of art, such as a sculpture, would infringe upon the author’s copyright, the copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing or public display of pictures of the building, as long as the building is ordinarily visible from a public place.

Congress exempted pictorial representations of architectural works from infringement for exactly the same reason that Warner Bros. wanted to place this building in its Batman movie. Architecture is a public art form and should be enjoyed as art by the millions who visit American cities every year and photograph many of the stunningly gorgeous buildings that rise from the concrete veldts. Also, many scholarly books on architecture are based on the ability to use photographs of architectural works.

Congress balanced the harm caused by photographing an architectural copyrighted work with what it considered an important public purpose served by these uses, and crafted the photographic exception.

Warner Bros.’ use in “Batman” fell squarely within the photographic exception to the Architectural Works Copyright Act.

To prevail, the artist had to establish that the decorative elements of the 801 Tower were separate artistic embellishments, and not an individual architectural work. The artist failed. The court found that the artistic and architectural impression created by the 801 Tower as a whole is one work, and concluded that the artistic elements included in the movie were a part of the building’s design plan. As such, they and the building were architectural works that could be photographed.

To me, the 801 Tower contains multiple separate works of art, such as the bat logo on a gate to show Los Angeles as a vampire sucking the area dry of water.

Carefully, the court abstracted the most obvious separable artistic elements and pointed out that the film avoided their inclusion. But many of the elements that were included in the film were unique and do not appear to be merely standard features that would not be protected from illicit copying. Perhaps the court was very concerned lest it create a standard that would prevent future film crews from framing the buildings along any public street when shooting a film.

What is clear, however, is that another case likely will expand this holding when a film crew shoots those elements of a building that really are separable from their inclusion as merely part of the building design. The frieze at the National Cathedral quickly comes to mind.________________________James B. Astrachan is a principal at the Baltimore firm of Astrachan, Gunst, Goldman & Thomas, P.C. Mr. Astrachan is also an adjunct professor of Intellectual Property Law at the University of Baltimore Law School.