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Publication Title

Washington University Law Review

Abstract

Media neutrality in copyright’s subject matter means that works of authorship are protected against copying, or not, regardless of the tangible medium in which they are fixed. For example, the same features of a sculptural work are protected regardless of whether they are fixed in a statue or a photograph of a statue. Media neutrality in subject matter is a fundamental and largely unquestioned copyright principle with a firm policy basis under copyright’s dominant incentive-to-create theory. Media discrimination in subject matter undermines in arbitrary ways authors’ ability to recoup their creativity costs over the sale of multiple copies.

This Article identifies a situation in which departure from the copyright principle of media neutrality in subject matter is unexpectedly good policy. The rarely discussed transactional theory of copyright holds that copyright’s goal is to facilitate the market transactions through which authors refine works and commercialize them into the copies that consumers want. When transactional theory, rather than incentive-to-create theory, is copyright’s primary justification, maintaining protection for the medium in which authors develop works and eliminating it for the medium in which the public consumes them preserves copyright’s full benefits while reducing its access costs.

To illustrate the argument, this Article looks to architecture as a case study. Copyright for building designs created before the enactment of the Architectural Works Copyright Protection Act (AWCPA) in 1990 employs media discrimination: it protects building designs when fixed in drawings but not when fixed in buildings. As a historical matter, the courts crafted this unusual rule of protected subject matter to accommodate concerns about copyright protection for the functionality of buildings. Yet, for architects who employ the custom design process at the core of the architectural profession, it has a sound transactional justification as well, and it would be good policy even if buildings were not functional artifacts. Copyright’s principal role in custom architectural design is to facilitate the architect–client transaction in which architects create building designs in return for fees that cover design costs. Pre-AWCPA copyright can perform this role just as well as full media-neutral copyright because it protects building designs fixed in architecture’s development medium (drawings). However, it reduces copyright’s access costs because competitor architects can borrow freely from building designs fixed in the consumption medium (buildings).

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