Tower designs to test copyright law

The outcome of a copyright lawsuit filed by a Yale School of Architecture graduate over the proposed design of the Freedom Tower likely will hinge on whether the court believes there is a “substantial similarity” between the two designs, legal experts said.

Thomas Shine ARC ’00 alleges that the design by David Childs ’63 ARC ’67 for the tower to be placed at the former World Trade Center site was copied from his work. In order to prove this allegation, Shine will need to show that the design elements in his plan are distinctive and creative, which the experts said would qualify his design for architectural copyright protection.

Shine would also have to prove that Childs had access to his designs, but Childs has already admitted that he saw Shine’s works when he served on a panel of jurists invited to evaluate students’ work for a studio class at Yale in 1999.

The Freedom Tower case is one of about several dozen architectural copyright cases that have been filed in the last 15 years, most of which have dealt with single-family homes, experts said. But what distinguishes it from the rest is that it is believed to be the first architectural copyright case that involves a skyscraper.

The case promises to be the “first big case” in architectural copyright infringement, said Jessica Litman, a copyright law professor at Wayne State University in Detroit.

“It’s because of the norms of the field of architecture,” Litman said. “If you’re talking about making a monumental building, nobody wants to design a monumental building that looks a lot like somebody else’s monumental building.”

Legal experts predicted it would be difficult for Shine to produce a smoking gun — that Childs directly copied his plans. Instead, they said, Shine could establish that Childs copied the plans by proving first that Childs had access to his designs and second that there is a substantial similarity between Shine’s plans and Childs’ Freedom Tower design.

A central question will lie before the jury: Are the works “substantially” similar? To resolve the issue, the court likely will home in on the unique and creative elements of the designs, disregarding commonplace stock elements, since only original elements receive protection under copyright law, the legal experts said. The court will have to determine whether the buildings’ design elements, such as the elongated diamond pattern and twisting tower, are unique.

“That will be what things will hinge on, whether this is a novel configuration or whether the common features are just stock,” said William Fisher, an intellectual property law professor at Harvard University. “So I wouldn’t venture how it’s going to come out, but just on first glance the two buildings are unusually similar.”

While most standard elements may not receive protection under copyright law, a unique combination of those stock features might receive protection. For example, even if the court considers the elongated diamond pattern and the twisting tower to be stock elements, the combination of these two elements in one design could be unique enough to be protected by the law.

Ron Klemencic, chairman of the Council on Tall Buildings and Urban Habitat, an international non-profit organization based in Chicago, said he is familiar with several buildings that use either an elongated diamond pattern or a twisting tower. But Klemencic said he does not know of any buildings that use the design elements together, like both Shine’s plan and Childs’ Freedom Tower design.

The Freedom Tower’s combination of elements is unique, Yale architecture professor James Axley said, noting that he has not conducted a formal survey of building designs.

“My sense is these buildings represent a unique deviation from what has been built throughout the world up to this time,” Axley said. “Both buildings have twisted rectangular prisms, slightly attenuated tops, lattice-grid structural systems — I see those features both as being relatively unique in that combination.”

In architectural copyright cases, juries usually determine whether or not substantial similarities exist between two designs based on the impressions of an ordinary observer rather than an architecture expert, said Robert Brauneis, the co-director of George Washington Law School’s Dean Dinwoodey Center for Intellectual Property Studies.

Lawyers in the Freedom Tower case can turn to a 2002 decision for precedent on copyright infringement in public buildings. Architect Elena Sturdza sued the United Arab Emirates government and a UAE-commissioned architect for copying a design she had submitted to the UAE in a competition. After winning the competition, she worked for two years to develop plans for a new embassy building in Washington, D.C. for the UAE before the government cut off communications with her.

Sturdza filed suit after noticing that the UAE had submitted to the National Capital Planning Commission an embassy design substantially similar to her own design. While a district court found the two designs were not similar enough, the U.S. Court of Appeals overruled the lower court’s decision.

“[The designs are] sufficiently similar with respect to both individual elements and overall look and feel for a reasonable jury to conclude that the two are substantially similar,” the appeals court wrote in its decision.

The two courts’ conflicting interpretations on the UAE embassy design reveal the degree of subjectivity that comes with determining the level of similarity and judging whether a particular design element — or combination of features — is unique and creative, especially when a jury uses a layman’s perspective.

While the legal standard for architectural copyright infringement is clear, experts said it remains unknown the position the Southern District Court of Manhattan will take with regard to the Freedom Tower case.

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