Pirate Architecture and Copyrights: Do Laws Really Prevent Copycat Designs?
In the early 2000s, as China’s economy began to boom and millions of people flooded into its cities, municipal organizers in Shanghai thought they had a solution to the ever-increasing metropolitan congestion.
They decided they would simply build new towns outside the city. And not just any towns, but ones that mimicked the great urban centers of Europe.
“They were not only brand new, but they were similar to luxurious, European capitals,” said Lluis Juan Linan, a PhD candidate in architecture at the Polytechnic University of Madrid. “You can find copycats of Paris, of Venice. They used these references to transmit or sell a more luxurious or attractive project.”
Beyond Shanghai, there’s an Eiffel Tower in Hangzhou, a U.S. Capitol building in Minhang — even a Tiananmen Square in Liaoning. There’s a name for the phenomenon of pirate architecture in Chinese: Shanzhai.
A slightly less theme-park-esque, but more telling — and certainly more headline-grabbing — example was a more-or-less duplicate copy of architect Zaha Hadid’s Wangjing Soho building. The original, in Beijing, was effectively reconstructed in the city of Chongqing by a developer who later said in a published ad: “Never meant to copy, only want to surpass.”
In China, where intellectual property rights are less robust, the line between allowable inspiration and flat-out thievery is crossed all the time. From a western perspective, though, an obvious question arises: How do they get away with it? Which leads to another: Aren’t we doing the same thing here?
Part of the answer lies in the culture and practice of architecture itself.
“There’s a line that architectural culture draws between the kind of copying that leads to an architect being shunned for failing to exhibit the master value of creativity and the kind of copying that leads you to be exalted as a fantastic re-interpreter of the known,” said Kevin Collins, a law professor at Washington University in St. Louis, who’s writing a book on intellectual property law and architecture.
In other words: There’s a line between copying and “surpassing.”
An Experimental Playground
China, with its infusion of cash and free-market exuberance, has become a destination for architects, thanks to its willingness to embrace risk.
“China has been a huge experimental playground,” said Jay Siebenmorgen, the visiting chair at Kansas State University’s College of Architecture, Planning and Design. “I’ve built buildings there I would never build here.”
The madcap architectural culture in China may be unique. But in the U.S., the culture of architecture just doesn’t allow for overt copying in a field where novelty is at a premium.
“In the U.S., you’re taught to not appropriate, to copy, another person’s work. It’s OK to be influenced by them, but it’s how you take something and evolve it into a new direction,” Siebenmorgen added. “It would be embarrassing if you were called out for copying another architect. That’s something you talk about in studio. And in our office, we’re quick to call it out: That was done by so-and-so. Take it off the wall.”
And a demand for the new and fresh also means that copying in Western countries, at least at the high-end level, rarely happens.
“Creativity gets them prominence, and prominence leads to commissions,” Collins said. “Firms have an awful lot of incentive not to engage in blatant copying — copying that is likely actionable under copyright law. To engage in that kind of copying ends up being detrimental to a firm’s long-term interest.”
In the U.S., the law only extended something approximating the full copyright protection that other copyrightable subject matters receive to architecture in 1990, when Congress passed the Architectural Works Copyright Protection Act (AWCPA).
Shine v. Childs
Collins — who happens to be both an architect and a law professor with an expertise in intellectual property law — decided he wanted to understand if and under what circumstances architects were actually taking advantage of their new and stronger AWCPA copyrights.
He reviewed all of the cases in the United States alleging infringement of an architectural work since the adoption of the AWCPA — around 350 in total. He found that, with only an occasional exception, architects only used their copyrights in just two types of cases.
The majority of cases involved rather banal stock-plan designs for single-family homes in suburban, bedroom communities — not the mega-towers designed by high-end architects. Largely, Collins said, these cases involved developers suing homebuilders and each other over the replication of designs. Second, the custom architects who exercise their copyrights almost exclusively sue their clients for failure to fully compensate them for their services.
Putting client suits aside, “we’re talking copying the designs of cookie-cutter houses,” Collins explained. “Once you get to the higher end, custom world of architecture, you see almost no copyright infringement suits” between competitor architects alleging that one architect saw another architect’s building and copied it.
But allegations of high-profile copying do happen in the United States. One notable case — and one of the few exceptions to Collins’ observations — was a lawsuit filed in 2004 by Yale architecture student Thomas Shine, who accused prominent architect David Childs of stealing a design that Childs reviewed in 1999 as part of a class.
In 2003, after Childs was asked to design a building for the World Trade Center site, he revealed his plans for the “Freedom Tower” to the public. Shine saw the plans and concluded Childs stole the idea from his designs.
The suit was ultimately settled, but the judge in the case wrote: “Both towers twist as they rise, but as defendants’ expert points out with ample evidence, the idea of a twisting tower with a rectangular base and parallel sides is by no means unique.”
The judge’s conclusion points to a situation inherent in architecture: To a certain extent, a building is a building — a structure that, by definition, owes to the conventions of previous versions.
Rem Koolhaas, one of the today’s most esteemed architects and design intellects, poked fun at the idea that anything in architecture could be so original that it deserved patent protection. In the 2004 book “Content,” Koolhaas depicted fake patent applications for some of his design firm’s inventions.
“He tried to patent them in order to ironically expose the situation,” Linan said. “In architecture, it doesn’t make sense to claim originality, because it’s a discipline that’s based on the same techniques and materials and historical circumstances and constraints.”
Still, with architects designing in digital platforms, it’s become easier to pirate architectural plans — as was the case with Hadid’s copied Beijing project. And while that was a very rare instance of near-exact copying, digital storage and reproduction has made that kind of theft a reality, in China and elsewhere.
Collins, for one, believes architects could use their intellectual property rights other than copyright more than they have since the passage of the 1990 law.
“If you ask an architect, what kind of intellectual property they have, they’ll say: I have copyright protection. But they won’t think about how obtaining patents, design patents, or trade dress protection—three other forms of intellectual property that can also protect architecture—could be to their advantage,” Collins said.
Meanwhile, he said, he believes the 1990 copyright law has had something of a negative effect on the market for suburban architecture, a segment of the field that could benefit from efficient, less expensive designs. The law hasn’t seemed to stimulate the creativity that such laws should, in theory, inspire.
“Apart from Shine v. Childs, there’s been almost no impact of the AWCPA on high-end architects,” Collins said, as custom architects already had the legal rights to bring client suits under pre-AWCPA law. “Architects are using these rights in the subdivision context. But there you have to scratch your head and say: Are the benefits worth the cost? Have we gotten more creative architecture out of these rights to offset the costs that copyright imposes on homebuyers and homebuilders alike? I would hazard the answer is no.”
Citation: Washington University School of Law's Online Master of Legal Studies Program