Two recent cases from Texas prompt this month’s column. One is so flatly, transparently, egregiously wrong that the reader can only marvel. The other is a perfectly reasonable decision that carefully applies Daubert to reject some really dubious litigation tactics, like offering expert testimony to show how the members of a particular profession interpret the Copyright Act. What do these cases have in common, besides the Republic of Texas? Architecture.
Like food and clothing, shelter is a basic human need that has always had a difficult relationship with copyright law. Because a building is at least in some respects a useful article, it is not considered pure copyrightable expression. Some of it has the utilitarian function of keeping its inhabitants warm and dry, and so Congress never extended copyright protection to three-dimensional structures at all until the passage of the Architectural Works Copyright Protection Act in 1990.1 This protects the “design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings. The work includes the overall form as well as the arrangement and composition of spaces and elements in the design, but does not include individual standard features.”2
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