Designed to fill the gap in the Manhattan skyline left by the 9/11 terrorist attacks, the original design of Freedom Tower, unveiled in late 2003, was inevitably invested with symbolic significance. Freedom Tower was meant to mark the re-emergence of innovative American architecture; its chief architect, David Childs, wanted the building to “demonstrate that American thinking and construction can compare with the best new examples in Europe, Asia and elsewhere” (Lacayo). These expectations and ambitions made it all the more shocking when architect Thomas Shine accused Childs and his firm, Skidmore, Owings and Merrill (SOM), of copyright infringement.
Of course, copyright protection implies that there is property to protect, and moreover, that someone has ownership of that piece of intellectual property. Because the purpose of American copyright law is to encourage progress, the assumption is that ownership of designs will give architects incentive to create increasingly efficient and visually-pleasing buildings. But this copyright paradigm has not always existed in the field of architecture. The Architectural Works Copyright Protection Act (AWCP), which Shine invoked, did not come into being until 1990. And it is far from certain whether protecting claims to ownership in architecture will help or hinder the future of the built environment. This, then, seems to be the question at the heart of the recent Freedom Tower dispute: does granting ownership serve progress? The Freedom Tower controversy may shed some light on how the question is discussed today, how the current paradigm fits into larger historical trends in architecture, and how valid it might be to protect architects’ claims to ownership.
Shine made his claim public in November 2004 when he charged Childs and SOM of plagiarism. In a suit under the AWCP Act, Shine argued that as an architecture master’s student in 1999, he presented a project titled “Olympic Tower” to Childs, who was on the review panel for the class. Olympic Tower featured a tapering top and twisting body that was wrapped in an exterior structure with a repeating diamond-shaped motif. When Shine saw a similar combination of these elements in Childs’ version of Freedom Tower in 2003, he smelled a rat; shortly after, he copyrighted his student project and sued Childs for infringement (Brown). A brief struggle over the legitimacy of the lawsuit ensued, with SOM asserting that the elements in Olympic Tower were in fact not original and hence ineligible for copyright protection. However, the court ruled that a lay observer “might find that the Freedom Tower’s twisting shape and undulating diamond-shaped façade make it substantially similar to Olympic Tower” (Judge Michael B. Mukasey quoted in “Architect’s lawsuit”).
But exactly what about the tower’s “design” was in dispute? And what part of the design was being protected by copyright? We may gain insight into the contours of the debate by looking at the rhetoric, which on first inspection suggests that it is the individual design features that were in question. Shine’s argument centered on the suspicious replication in Childs’ proposal of the distinctive elements which characterized his Olympic Tower. Newspaper reports on the infringement case broke down the architectural design into discrete copied elements and enumerated the “twisting surfaces,” “diagonal exterior grid” and “other similarities” (“Architect sues”). The language suggests that such design elements are like Lego components; Shine’s position was that each block in Freedom Tower was copied from his own skyscraper. Childs and SOM defended their position in similarly reductive terms, claiming that “most of these elements have been industry standards for decades” (SOM spokesperson Elizabeth Kubany quoted in “Architect sues”). If the parts that make up Olympic Tower are ineligible for copyright protection, SOM argued, then so is the design of Olympic Tower itself. What really appears to be at the heart of the case is the appropriation of the tapering, twisting and exterior grids en masse. It was not just the individual reappearance of these elements that startled Shine, but the copying of his own particular way of assembling these features.
But why is it significant that the legal conflict should be drawn over the arrangement of elements into a whole and not the elements themselves? In architecture, the overall composition of a building is of primary importance as far as the observer’s experience is concerned. According to journalist Clay Risen, we appreciate architecture “holistically.” “The vast majority of people, inside and out of the profession judge a building by the sum of its parts to the near exclusion of its individual elements,” Risen asserts. If we do, indeed, see first and foremost the overall concept and character of a building, then there may be some credence to the view that Childs’ design was suspiciously close to Shine’s student project in its particular combination of architectural forms. The court that ruled on the case used a holistic approach, judging how average people would perceive similarity and difference according to a “total concept and feel” test (Brown). Although cultural progress is the goal of copyright, the court ruling suggests that progress can be made by simply rearranging external features of the design.
Fordham University law professor Raphael Winick argues for the equation of progress with rearrangement when she writes that architectural progress “consists of appropriating elements from the architectural vocabulary, and rearranging them in a more useful or more aesthetically pleasing way” (1605). Originality and innovation manifest themselves in the very combination of elements that Shine supposedly created, Childs purportedly stole, and copyright law is meant to be protecting. Winick writes that appropriation of existing design elements, such as the twisting façade and exterior diagonal trusses,“is absolutely essential” (1604) for the profession, but she would likely argue that the wholesale repetition of a particular arrangement of elements would be antithetical to progress. Winick does acknowledge that “The incremental innovation that can transform art may be very slow and subtle,” and that “small alterations in a previous design may constitute a significant utilitarian or aesthetic advance” (1605). However, by “small alterations,” she appears to imply the introduction of some heretofore foreign element into a new context; she gives the example of the surprising and bold addition of a broken pediment, usually found on top of grandfather clocks, to the AT&T building in New York (1605). Simply placing Olympic Tower’s torqued body, tapering crown and triangular trusswork in the novel context of ground zero would not qualify as any functional or aesthetic advancement, as Winick’s idea of a “small alteration” seems to mean a quite substantial addition to the design.
Winick’s contention that architectural evolution may be slow was embraced by old masters such as Mies van der Rohe, who reportedly said, “I don’t want to be original, I want to be good” (quoted in Rybczynski). Mies, like Winick, recognized that architectural ideas had to be refined instead of created anew. But there is a key difference between Mies’s position and Winick’s: Mies would have probably approved of miniscule changes to the previous design, whereas Winick calls for design elements to be reshuffled, if only subtly. Instead of constantly producing new arrangements, existing ones ought to be returned to over and over again and tweaked to near perfection. Perhaps architectural advancement is not achieved by adding or taking away features from a certain combination—as you would introduce new blocks to a Lego construction—but by slightly altering the design’s whole, even if the basic elements are kept intact. This possibility seems to be one that current architectural copyright law has overlooked. One only has to consider how the Freedom Tower controversy was debated to see that legal practice operates on Winick’s rather narrow assumption of progress and not Mies’ more open one.
Clearly there has been a shift in what constitutes architectural progress, and copyright law has developed in response to the times. To determine how valid the recent legal claims to ownership are, we need to look beyond our current epoch and see how architecture has worked historically. Slate architecture critic Witold Rybczynski writes that “For most of the last 500 years, imitation was the sincerest form of architectural flattery.” Renaissance architects imitated ancient styles and gladly borrowed from and even depended on the work of their contemporaries. The profession was therefore a collaborative pursuit in which “ideas bounced back and forth, gathering momentum in the process” (Rybczynski). This unembarrassed reliance on previous works meant that no single “author”—so far as there could be one—owned the ideas. Even in the early 20th century when “pioneers such as Mies van der Rohe made discoveries, they belonged to everyone; it was a sign of esteem when other architects copied.” Now, however, we live in a moment “in which originality is valued above all” (Rybczynski). Clay Risen theorizes that postmodernism, with its rejection of dominant aesthetic rules, is to blame. Risen explains that ever since the advent of postmodernism in 1950s, we have had what he calls an “anti-paradigm” in which there is no “single, definable, ruling aesthetic,” only the aesthetic of difference. The result is that “each architect, rather than building off others in the formation and perfection of a particular aesthetic, is supposed to develop his or her own aesthetic to the near exclusion of everyone else.” Unlike the “International Style” of Mies’ era in which largely derivative steel and glass office towers swept cityscapes around the world, the emphasis today is on anarchic uniqueness. Suddenly, influence is out of fashion and fierce independence and originality is in vogue.
But fashion does not always reflect the facts; no matter what the current trends, today’s architects are still very much influenced by the past and still rely heavily on creative exchange and collaboration. If anything, modern-day projects are more technically complex, requiring not only additional engineers but an entire hierarchy of designers who migrate from one firm to the next, taking others’ ideas with them. Amidst this hubbub of interaction and influence, the “romantic image of the solitary genius,” as journalist Fred Bernstein calls it, can only be a myth, for “an architect cannot but be influenced by images seen and remembered” (Giovannini). When Shine was a student working on Olympic Tower, surely myriad influences from his colleagues and professors were at work on him, and it is likely that he influenced others, including Childs. Even if there is no formal contact between architects, there is still that thing called the zeitgeist. Robert A. M. Stern, dean of the architecture school that Shine attended, describes it as such: “In any given moment…things are in the air. So people in different parts of the world often come to very similar solutions” (quoted in Dunlap). Shine and Childs probably tweaked and toyed with the same design solutions, bouncing ideas off of each other like all other architects present and past.
The trouble with our obsession with originality today is that it “distorts the creative process” (Rybczynski) which is necessarily characterized by this cauldron of collaboration, exchange and influence. Today’s skewed conception of good architecture shifts the focus away from improving the built environment through refining a design. Instead, ambitious architects are pressured to cultivate their idiosyncratic style. Perhaps this emphasis on the importance of being an original thinker led Shine to file for infringement. Had attitudes about architecture been different, the case may never have arisen, and architectural copyright law may not be practiced today as frequently and restrictively. Of course, the very existence of the 1990 AWCP Act is a product of our mode of thinking about the architectural profession of late.
But the act of codifying current attitudes into law may also reinforce them. Professor of architecture Robert Greenstreet has conjectured that fear of litigation may lead to a “design-to-be-different” strategy. The result would be a dystopian landscape of utter visual discord; the AWCP Act might prevent individual buildings from “creating visual harmony with existing surroundings” (Greenstreet and Klingaman 182). More generally, Rybczynski fears that the “architectural conversations” that are so crucial to the creative process may cease and that “the process of architectural evolution may grind to a halt as architects are forced to start from scratch each time they approach a project” (Risen). This seems to be only one step away from Shine’s claiming legal ownership to his particular arrangement of taper, twist and trusswork and then suing Childs for not being original enough.
Given these grim prospects for the future, it could very well be that our current copyright paradigm is based on a misreading of the architectural creative process, that it is not doing justice to the complex question of ownership, and that by legalizing ownership it is stifling the profession’s vitality. Borrowing and influencing, consciously or not, has long been an essential, at times even institutionalized, part of building design. One might even say these are among the timeless ingredients for architectural evolution. Only in recent decades has such influence become scandalous. Granted Childs’ Freedom Tower may have been strikingly “unoriginal,” but perhaps this close similarity—a resemblance that borders on what some might call “plagiarism”—is what actually drives progress in architectural design. Originality, enforced by our current copyright laws, may have the opposite effect and could wreck the built environment. This possibility should make us rethink copyright protection and its place in architecture. To grant copyright is essentially to confer ownership, with all the risks of choking a profession that depends on the free exchange of ideas.
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