Intangiblia™
Plain talk about Intellectual Property. Podcast of Intangible Law™
Intangiblia™
Eiffel Off Limits: Architecture, Access, and the IP Rules
Skyscrapers aren't just engineering marvels, they're intellectual property battlegrounds where creativity meets the courtroom. Welcome to the fascinating world where distinctive buildings become trademarked brands, architectural blueprints trigger million-dollar lawsuits, and even tourist photographs might infringe copyright.
Our journey begins with trade dress protection for buildings so distinctive they function as logos. The Hard Rock Hotel's 450-foot guitar shape earned trademark protection for being "inherently distinctive." At the same time, the geometrically interesting Palacio del Rio learned the hard way that being architecturally notable isn't enough, you need instant brand recognition. When your building makes people stop and stare, it might just be eligible for trademark protection.
We then explore the often-overlooked protection for architectural plans. Blueprints aren't merely technical documents but creative works with automatic copyright protection. From the UK to Canada to Australia, courts have awarded substantial damages when developers use another's plans without permission. The message is clear: copying isn't just copying and pasting, using someone's creative layout without authorization is litigation waiting to happen.
The laws governing the photography of buildings create another layer of complexity. "Freedom of panorama" determines whether you can snap, share, or sell images of buildings in public spaces, with drastically different rules worldwide. The Eiffel Tower exemplifies this peculiar legal landscape, the structure itself is in the public domain. Still, its twinkling lights remain under copyright protection, meaning your nighttime Paris photo could technically require permission for commercial use.
Perhaps most fascinating is the tension between owning a building and owning its design. When a Brazilian paint company used a home's image on product labels with the owner's permission but without consulting the architect, the courts sided with the architect. Similarly, when a German museum planned renovations requiring the removal of an architectural art installation, the Federal Court had to weigh property rights against creative moral rights.
Whether you're an architect protecting your vision, a developer navigating permissions, or simply someone who appreciates beautiful spaces, understanding these intersecting legal frameworks helps you navigate the built environment more responsibly. Because great design deserves more than admiration, it deserves legal protection, proper credit, and sometimes, a really good lawyer.
Subscribe now to explore more intellectual property frontiers where creativity and commerce collide in unexpected ways.
Ever looked at a building and thought, wow, this belongs in a museum. Well, honey, some of them do, and others they belong in court. From guitar-shaped hotels to Eiffel Tower, light shows architecture doesn't just shape skylines, it shapes legal doctrines. So buckle up. We're about to enter the world where bricks meet briefs and blueprints have bite. This is Intangiblia, where we put a roof over your intellectual property knowledge and make it fabulous.
Speaker 2:You are listening to Intangiblia, the podcast of intangible law playing talk about intellectual property. Please welcome your host, leticia Caminero.
Speaker 3:Welcome back to Intangiblia, the podcast where creativity, commerce and law meet in often unexpected places.
Speaker 1:I'm Leticia Caminero, your host and I'm Artemisa, your legally curious, occasionally sassy, definitely non-human co-host. Just a heads up, while I've got facts and flair, I'm still AI, not a lawyer, so take my hot takes with a grain of machine learning Still AI, not a lawyer. So take my hot takes with a grain of machine learning.
Speaker 3:That's right. This episode was co-created with the help of artificial intelligence, and today we're diving into the structures that surround us and the rights that protect them.
Speaker 1:Because architecture isn't just about good angles.
Speaker 3:It's about ownership, design credit and, when needed, a strongly worded lawsuit ownership, design credit and, when needed, a strongly worded lawsuit From stadiums and signature facades to bridges and building plans. Today we'll explore how architecture gets protected under intellectual property law and what happens when those protections are challenged. And let's begin with something bold. Bold buildings that don't just serve a function but make a statement.
Speaker 1:We're talking about architecture that acts like a logo because, darling, when your building looks like a giant guitar or a sculpture from the future, you're not just creating real estate, you're building brand realness exactly, and that's where trade dress comes in.
Speaker 3:Under, trade dress refers to the visual appearance of a product or, in this case, a building. That signifies its source. For a structure to qualify, it has to be distinctive and non-functional.
Speaker 1:Translation you can't protect a square beige office building, but if your hotel looks like a Vegas magic trick, we're talking.
Speaker 3:Let's look at a case that quite literally struck a chord. The Hard Rock Hotel in Florida is shaped like a giant guitar not inspired by a guitar, not guitar theme a literal, vertical, 450-foot glass-clad guitar. The Seminole tribe applied to register that shape as a trademark for hotel and casino services and the trademark trial on a billboard said yes. The design was so inherently distinctive that it didn't even need to prove acquired distinctiveness, it could stand on its own.
Speaker 1:Let me say it louder for the developers in the back If your building is unmistakable, unforgettable and legally non-functional, you might just trademark it. Now that's high stakes architecture.
Speaker 3:It's a powerful example of how architecture can blur the lines between structure and branding. The guitar shape isn't just a novelty, it's doing the work of a logo. It draws attention, creates association and brings people in the door.
Speaker 1:That's the essence of trade dress and don't forget the merch potential. You're not just trademarking a building, You're protecting the symbol that sells snow globes, postcards and branded flip-flops.
Speaker 3:But what happens when the shape is bold, just not quite bold enough? This case involved the Palacio del Rio Hotel in San Antonio, Known for its modular construction back in the 1960s. Each hotel room was prefabricated and lowered into place by grain. It has a unique facade with recessed balconies and geometric symmetry. The owners tried to register the building's facade as straight dress, but the T-Tap said no.
Speaker 1:Womp, womp. It didn't scream source identifier, it whispered modernist efficiency.
Speaker 3:Exactly. De Boer found the design lacked inherent distinctiveness and, while the hotel might be architecturally interesting, it didn't rise to the level of instant brand recognition. Without overwhelming public association between the building's appearance and a specific commercial origin, it didn't qualify for protection.
Speaker 1:So moral of the story it's not enough to be interesting, You've got to be iconic.
Speaker 3:Or at least very, very recognizable. Trade dress in architecture is still an involving area of law, but these cases show that if your building's look has strong branding power and it's not functional, it might earn trademark protection.
Speaker 1:It's not just about blueprints anymore. In the IP world, bold design is your signature and your shield.
Speaker 3:Now let's move from bold buildings to the documents behind them, because long before a structure touches the sky, it lives on paper or on a CAD file.
Speaker 1:And those papers. They're not just technical, they're protected. Think of them as the architectural equivalent of a song demo. You don't need the final album to have copyright. The idea, the layout, the creative expression, it's all there from the start and drawings are protected as literary or artistic works.
Speaker 3:Original designs, meaning they show creative expression. Get automatic protection, no registration needed.
Speaker 1:So, but if someone copies them, oh, it's blueprint drama.
Speaker 3:Let's start with a UK case that shows how seriously courts take this kind of infringement. In this case, Signature Realty hired an architect to design plans for a new residential development. Then things went sideways. Signature lost the land to a rival developer who decided to use those same architectural plans to push their version of the project.
Speaker 1:Messy real estate meets real violation.
Speaker 3:The UK High Court agree. Even though the building was never completed under Signature's plans, those blueprints were protected. Fortis had no license, no agreement and no right to use them. The court ruled this was copyright infringement plain and simple.
Speaker 1:Copying isn't just CTR plus C in the IP world, using the creative layout of a building without permission, that's litigation on arrival.
Speaker 3:Let's cross the ocean to Canada, where another developer learned that coping structure isn't just unethical, it's expensive. Lenco, an engineering firm, designed an innovative soccer stadium roof that designed its curves, spacing and the whole structural rhythm was copied by a local school board and their collaborators. They didn't just get inspired, they replicated key elements almost exactly.
Speaker 1:Inspiration's cute Infrigement isn't, especially when you get slapped with nearly $750,000 Canadian dollars in damages.
Speaker 3:That's right. And the court didn't just stop at the school board. It held the architects and contractors liable too. Why? Because they knew, or should have known, that they were using someone else's protected design.
Speaker 1:This was a group project and everyone failed together, including the builder who tried to claim it was standard design. Nope, not today.
Speaker 3:These cases send a strong message If you're part of a project, you can't hide behind your role, whether you're the client, the builder or the engineer. If you use a protected architectural work without authorization, you could be on the hook. Protected architectural work without authorization you could be on the hook.
Speaker 1:Ignorance isn't a defense. If the blueprint came from someone else's genius, you'd better ask first, or?
Speaker 3:pay later. And finally, let's head to Australia, where minimal changes didn't save a developer from a copyright storm. Tamagot created a standard home design compact, functional, but with a clever internal flow. Habitare, a competing developer, made some minor changes, moved the bathroom here, swapped the bedroom there, but the bones of the layout identical.
Speaker 1:You can put lipstick on a blueprint, but if it walks like a plan and talks like a plan, it's a copy.
Speaker 3:The Federal Court of Australia agreed. The judges applied a substantial part test, even if not every detail was copied, enough of the creative core was taken to trigger liability. It wasn't about mathematical precision, it was about the heart of the design.
Speaker 1:If your new version looks like it came out of the original architect's computer with a few mouse clicks, don't expect the court to be fooled.
Speaker 3:And this case teaches an important point you can't avoid liability just by tweaking surface details. If the layout, structure or creative vision is the same, you're still infringing. So what do these cases have in common? They remind us that architectural plans are not just building instructions. They're protect expressions of creativity no different from a painting, a screenplay or a song and when someone copies them without permission.
Speaker 2:it's not just a design issue, it's a legal one.
Speaker 3:Let's talk about something we've all done. Snap a photo of a beautiful building. Maybe it was a selfie in front of a museum or a panoramic shot of a skyline. But here's the question Can you actually use that photo without violating?
Speaker 1:someone's intellectual property rights. And by use we mean post it, print it, sell it, slap it on a tote bag, turn it into an NFT oh wait, that's a whole other episode. But yes, this is where architecture meets copyright in public spaces.
Speaker 3:The legal concept at play here is called freedom of panorama. It's the idea that if a work of architecture is permanently located in a public space, people should be free to photograph or film it, and in some countries even use those images commercially.
Speaker 1:Sounds simple, right Wrong. This legal freedom exists in some jurisdictions and is very limited or totally absent in others.
Speaker 3:Let's start with the big picture. In countries like the United Kingdom, Canada and Spain, the law explicitly allows people to photograph buildings that are visible from public places and even use those images commercially.
Speaker 1:So yes, your rooftop coffee table book of Barcelona balconies is legal, as long as you're not breaking any drone laws.
Speaker 3:Meanwhile, in France and Italy, things are a lot stricter. Freedom of panorama is limited. You can take personal photos, yes, but if you want to publish them in a book, use them in a video game or print them on t-shirts to sell at a market, you may need to get permission, sometimes from the architect, sometimes from the city, sometimes both, and sometimes you'll get sued just for catching a little too much sparkle sometimes you'll get sued just for catching a little too much sparkle.
Speaker 3:Which brings us to our next case, an iconic one. The Eiffel Tower by day is in the public domain. It was completed in 1889 and Gustav Eiffel's copyright has long expired. But here's the twist Its lighting installation, added in 1985, is a separate copyrighted work. A photographer took a picture of the tower at night with the lights twinkling, and found himself in legal hot water.
Speaker 1:Can you imagine You're just trying to capture romance in Paris and suddenly you're in a court case over lumens and lighting design?
Speaker 3:The European Court of Human Rights eventually found no breach of the photographer's freedom of expression, but confirmed the core legal principle Even if a structure itself is in the public domain, features added later can still be protected.
Speaker 1:And that means nighttime. Photos of the Eiffel Tower technically require permission if they're used commercially.
Speaker 3:So what about the rest of the Eiffel Tower? Technically require permission if they're used commercially. So what about the rest of the world? Nigeria recently passed a new copyright act with a limited freedom of panorama. It allows you to use images of buildings in public places for non-commercial purposes education, personal use, research, but if you want to use those images in a billboard or ad campaign, still off limits unless you get permission. The bottom line, whether or not you can use that photo of a stunning modern building depends entirely on where you took it and what you want to do with it, because architecture may be public, but rights can still be private.
Speaker 3:And it's a delicate balance between the rights of the architect, the rights of the public and the role of a building as part of the shared visual landscape.
Speaker 1:So next time you take a gorgeous pic of a skyline, just remember the view may be free, but the law might say otherwise.
Speaker 3:We've talked about blueprints and photographs. Now it's time to talk about something that often creates tension in architecture Ownership versus authorship, because even when a building changes hands, the architect may still have something to say about what happens next.
Speaker 1:Cue the legal side eye, because welcome to the world of moral rights, where the architect's ego gets a little legal backup.
Speaker 3:Moral rights are personal rights of the author. They include the right to be credited for your work and the right to object to modifications that distort or mutilate your original creation. And when it comes to architecture, that gets complicated, because buildings aren't paintings. They get lived in, altered, renovated or even demolished.
Speaker 1:And that's when the lawsuits pour in like natural light through a floor-to-ceiling window.
Speaker 3:Let's head to Brazil for a case that shines a light on facade rights. Literally, a paint company used a photo of a stylish private home on its product label. They had permission from the homeowner and the photographer, but not from the architect. The Brazilian Superior Court of Justice sided with the architect. The use was commercial, the facade was distinctive and the architect still held copyright in the visual expression of that design.
Speaker 1:So yes, you can live in the house, decorate the house, even paint the house, but slap that house on a product label without the architect's green light. That's infringement.
Speaker 3:And the court made it clear just because you own the building doesn't mean you own the design.
Speaker 1:Ownership ends at the deep Creative rights. Those are personal and sometimes perpetual.
Speaker 3:Now let's go to Germany, where the debate between moral rights and property rights reach a whole new level. An art collective had installed a permanent architectural artwork, a kind of sculptural building extension, on a museum in Mannheim. Years later, the museum planned renovations that required tearing it down.
Speaker 1:And the artist said excuse you, that's not just concrete, that's our vision.
Speaker 3:The case went all the way to Germany's Federal Court of Justice. The court acknowledged that demolishing a building or a work integrated into a building can be the harshest form of modifying it, but it also said that property owners have legitimate interests. In this case, the need to repurpose the museum outweighed the moral rights of the artist.
Speaker 1:In other words, the court saw both sides but handed the bulldozer the final word.
Speaker 3:As ruling reinforced a trend in German law while moral rights are protected, they're not absolute. They're not absolute, especially in architecture. The public's needs, safety considerations and the owner's control over the property usually tip the scale.
Speaker 1:It's a reminder that, even if your name is on the original design, you don't get eternal veto power over future changes.
Speaker 3:Exactly, exactly. Architects can often remove their name from altered works if they feel it represents their vision, but they can't always stop the changes themselves.
Speaker 1:So if you're a property owner, read your contracts, and if you're an architect, remember. Permanence is a negotiation, not a right.
Speaker 3:So what have we learned from all this?
Speaker 1:That, in architecture, creativity is personal property, is practical and the law sits squarely in between, and while you may own the building, the story it tells might still belong to someone else.
Speaker 3:All right, we've walked through shapes, sketches, photos and feelings.
Speaker 1:Now let's lay the foundation for what actually can be protected in architecture, because the legal toolkit is bigger than you might think. We're talking copyright, design rights, trade dress, moral rights basically an IP buffet, but only if you know what you're looking for.
Speaker 3:Let's break it down. The first and most obvious protection is copyright. Copyright applies to two main things. One, architectural plans and drawings, the blueprints, sketches and digital models. Two, the actual constructed building. If it's original and shows creative expression, the built structure itself can be a copyrighted work.
Speaker 1:But let's be clear your standard concrete box with symmetrical windows probably won't pass the originality test. Copyright protects design, not default.
Speaker 3:Exactly, and that protection kicks in automatically the moment the work is created. No registration needed in most countries, but registering can help enforce your rights, especially if you want to sue Next up design patents or industrial designs, depending on the country. These are more technical and apply to ornamental features like a unique staircase, facade element or even a modular unit used in multiple buildings. They have to be new, non-functional and filed before public disclosure in most jurisdictions.
Speaker 1:So if you're a prefab genius designing chic geometric walls, file early, protect globally.
Speaker 3:Now let's talk trade dress. It's part of trademark law and applies when a building's appearance acts like a brand identifier.
Speaker 1:Remember our guitar hotel. That's trade dress magic, but only if the look is non-functional and instantly recognizable. It's rare but powerful.
Speaker 3:Think flagship stores, theme parks or hotels that have an unmistakable shape.
Speaker 1:Next on the list, moral rights. These are all about authorship and integrity.
Speaker 3:In many countries, architects have the right to be credited as the author. Object to distortions or modifications of their work. Refuse association with altered versions, even if they've sold the copyright.
Speaker 1:In civil law. Countries like France, brazil and Germany, these rights are strong and in some cases they last forever. In others, like the US and UK, they're more limited and sometimes waivable.
Speaker 3:And finally, freedom of Panama. No protection, but an exception. This allows people to use images of buildings that are permanently located in public space without needing permission.
Speaker 1:But the fine print varies wildly. You're free to post your vacation photo in Toronto, but don't try selling postcards of a lit up Eiffel Tower without checking the law. So to recap, what can be protected? The design itself, copyright, the look and feel, design right or trade dress, and in some places, your ability to share or reproduce that design is limited by panorama laws. In other words, architecture isn't just building stuff, it's building rights and defending them Exactly.
Speaker 3:And knowing which tool to use can mean the difference between owning your masterpiece or watching someone else profit from it. We've traveled from hotels shaped like guitars to soccer stadiums under scrutiny, and along the way we've seen just how layered architecture can be.
Speaker 1:And now, as promised, here are five takeaways to lock in those legal blueprints.
Speaker 3:Takeaway one shape cells. If your building design is bold, recognizable and non-functional, it may qualify for trademark protection as a trade dress. But generic won't cut it. You need visual impact and legal distinctiveness.
Speaker 1:Takeaway two sketch stealing is still stealing. Architectural plans are creative works. Copying them, even with small tweaks, is a copyright violation in most jurisdictions. Respect the lines or risk the fine.
Speaker 3:Takeaway three ownership authorship Buying a building doesn't mean you own its design. The architect still holds rights over how that design is used, altered or commercialized. That includes image rights and moral rights in many countries.
Speaker 1:Takeaway four creativity has a light switch. Design elements like lighting schemes or decorative features can have their own copyright. Even if the structure is in the public domain, added creative components may still be protected.
Speaker 3:Takeaway five location changes the rules. Freedom of panorama is not universal. What's fair use in London might be infringement in Paris. Always check local laws before using photos of architecture in commercial projects. Whether you're an architect, developer, photographer or just someone who appreciates beautiful spaces, understanding these layers of protection can help you navigate the built world more responsibly and creatively.
Speaker 1:Because, let's face it, great design deserves more than admiration. It deserves legal protection, credit and sometimes a good lawyer.
Speaker 3:That's all for today's episode of Intangiblia. I'm Leticia Caminero.
Speaker 1:And I'm Artemisa and, just like a good foundation, we're always here to support your ideas. See you next time.
Speaker 2:Thank you for listening to Intangiblia, the podcast of intangible law playing. Talk about intellectual property. Did you like what we talked today? Please share with your network. Do you want to learn more about intellectual property? Subscribe now on your favorite podcast player. Follow us on Instagram, facebook, linkedin and Twitter. Visit our website wwwintangibliacom. Copyright Leticia Caminero 2020. All rights reserved. This podcast is provided for information purposes only.