Architectural Copyright Overstep Keeps the Chrysler Building From Appearing in Marvel’s Spider-Man: Miles Morales
In a November Game Informer article, Blake Hester discusses the notable absence of the Chrysler Building from Marvel’s new Insomniac-produced Spider-Man: Miles Morales video game. As he describes it, the building has been featured prominently in previous “open-world” New York-based games from Marvel, and it continues to appear in recently released remasters of them. It also shows up in the Spider-Man animated series and various Marvel films. In this latest release, though, the omission is attributed to a copyright dispute and an apparent inability to secure licensing to depict the building.
Hester notes that since Insomniac’s first Spider-Man game (skyscraper intact and prominently featured) was released, the Chrysler Building was sold, suggesting that new owners could be the roadblock here. But the details of the ownership transfer are curious: Hester reports that in March 2019, the building sold for $150M — half of the $300M the sellers paid for it in 2001, and spectacularly less than the $800M the Abu Dhabi Investment Council made to own a majority share of it in 2008. Is any of this high-stakes real estate dealing relevant to a supposed copyright claim on a 90-year-old historical landmark building? What happened here, and is there a hope that we might discourage this type of scare-mongering in the name of architectural copyright?
We don’t have all the information, and that’s part of a larger problem. Licensing deals and permissions practices in general are opaque and settled out of public view. There isn’t a national database, for example, of who to email if you want to use a particular photo on your website or to check whether a certain essay or passage from a book is under copyright; there’s just the threat that you might accidentally infringe upon someone’s copyright and be called to task (or sued) later on. The situation isn’t helped any by sensational and reductive reporting like the Game Informer article, which plants a seed of fear in readers’ minds.
Hester writes that “as of 1990, architectural works such as the Chrysler Building can be protected under copyright, no different than other forms of art,” but that’s not entirely true. Architecture constitutes a standalone category of copyrightable work, with exceptions to its protection specific to its medium and its creative economy distinct from art generally, just like protections for visual art are distinct from those for books. This wasn’t an accident. I’ve written about the various paths not traveled in architectural copyright elsewhere, but in summary: when it was clear in the 1980s that the only way the US could join the Berne Convention was by finally extending copyright protection to architecture, the Congressional Subcommittee on Courts, Intellectual Property and the Administration of Justice, chaired by Rep. Robert Kastenmeier, entertained proposals for how the new law should be structured. The two bills that made it to the Subcommittee for discussion were a bare-bones version of the Architectural Works Copyright Protection Act of 1990 that eventually became law and the Unique Architectural Structures Copyright Act of 1990. This second version was designed to protect only very special buildings — examples given in the House introduction included the Pompidou Centre and the Sydney Opera House. These buildings of unique quality were proposed to be excluded from the definition of a “useful article,” the uncopyrightable catch-all category into which architecture fell at the time. The glaring impossibility of administering this quality judgment, and the attendant incentive it would provide for what expert witness Michael Graves termed “object buildings,” made the AWCPA’s surgical addition of architecture to the list of copyrightable works seem like the prudent option.
All this is to say that the Architectural Works Copyright Protection Act was designed to provide copyright coverage to architecture, broadly defined, in a very thin way. In fact, the hearings were all about how to keep the scope of protection narrow. Interested parties like AIA (American Institute of Architects), the Frank Lloyd Wright Foundation, and Columbia Law Professor Jane C. Ginsburg all provided suggestions for how to limit coverage, including granting building owners blanket rights to alter or destroy their structures, regardless of copyright holders’ (read: architects’) wishes. The law also expressly extends the right to make pictorial representations of an architectural work if it is visible from a public way.
AIA supported the destruction exception as a way to preclude owners from requiring copyright transfer as a standard practice. By letting owners do whatever they liked to their buildings, the thinking went, architects could retain the limited rights afforded by ownership of their original design. The exception allowing pictorial representations was more of a pragmatic concern. While art is typically (though with big, obvious exceptions) shown in controlled, often indoor, limited-access conditions, and granted that the line between art and architecture when it comes to copyright has been somewhat wobbly, architecture is very much out in the world. To presume to prevent someone from photographing a building, or to try to distinguish between the ambient or accidental capture of a building in, say, the background of a photograph, would be to expose the impossibility of enforcing such a law. Architects sell designs for buildings, not photographs of them, even if they can be photographed. Following that the common law imperative for US Copyright is to incentivize producers to produce, photographs of a building don’t compete with the thing architects actually sell.
From the US Copyright Law Chapter 1, §120:
120. Scope of exclusive rights in architectural works
(a) Pictorial Representations Permitted. — The copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place.
(b) Alterations to and Destruction of Buildings. — Notwithstanding the provisions of section 106(2), the owners of a building embodying an architectural work may, without the consent of the author or copyright owner of the architectural work, make or authorize the making of alterations to such building, and destroy or authorize the destruction of such building.
It’s entirely possible that there is some valid intellectual property to be had in the Chrysler Building — perhaps the distinctive top of the building could be argued to serve as a sort of trademark for the car company? Or, maybe the belief is that a video game rendering of a building is so life-like as to constitute an actual duplication of the architectural work (I would love to see the depositions in such a case). But Hester’s implication that the Chrysler Building doesn’t appear in Spider-Man Miles Morales because the game creators weren’t able to reach a deal with the owners of the building’s copyright to license use of it suggests broadly that one needs to get such permissions. That is counter to my understanding of architectural copyright law. It also points toward a troubling trend of overly zealous legal what-ifs constraining creative fields like video game design and, clearly, architecture itself.
When cases like this end with the omission of a world-famous building from a massively popular ‘open world’ video game, there are all sorts of unintended downstream effects. Without the benefit of a court’s ruling, we can’t know if a claim of copyright ownership would even have been upheld, and we don’t know what the basis for the claim might be. With each reported instance of licensing trouble or hints that architectural copyright claims could make infringers of us all, the Public Domain is imperiled. Over time, the vast wealth of this collectively held knowledge is then depleted, kept from those who need it the most. Someone is reading the Game Informer article and thinking about how they should be careful lest they inadvertently accidentally break the law.
Now that architectural copyright law has come of age, we can (and should) learn from what documentary filmmakers came up with more than a decade ago, creating and publicizing a disciplinary code of best practices to persuade film distributors’ liability insurers to let them exercise their fair use rights. I’ve written on this in more detail elsewhere, but without activism coming from within the field, the legal-insurance complex will continue to spin worst-case scenarios and limit access to and use of our Public Domain. As Jason Mazzone has pointed out, in the absence of a deputized defender against such attacks, this shared resource will eventually disappear.
Sarah Hirschman is founder of Object Projects, an architecture practice in Oakland, CA and a Lecturer at UC Berkeley. Her research focuses on architectural copyright and originality, with brief digressions into improvisation methods, humor, and material metaphor.
