Leicester

Opinion by Judge RYMER; Concurrence by Judge TASHIMA; Dissent by Judge FISHER.

In 1994, the 801 Tower in downtown Los Angeles and four towers that form its streetwall on the south side of the building became the Second Bank of Gotham in Batman Forever. Andrew Leicester, an artist known for large scale public art, claims copyright protection for these towers along with other artistic works he created in a courtyard space called the Zanja Madre. He registered the whole of Zanja Madre as a “sculptural work” and sued Warner Brothers for infringement. Following a bench trial, the district court found that the streetwall towers (even though they have artistic elements) are part of the “architectural work.” As such, the court concluded, pictures taken of the streetwall towers along with the 801 Tower are not infringing pursuant to the exemption for pictorial representations of buildings in the Architectural Works Copyright Protection Act of 1990. 17 U.S.C. § 120 (a). Leicester argues that the court erred by refusing to consider the Zanja Madre as a unitary sculptural work, and *1214 by construing the 1990 Act so as to eliminate separate protection for sculptural works attached to…

concurring:

I concur in the result and in most of the reasoning of the majority opinion. I disagree only with its conclusion that the district court found that the streetwall towers were not “conceptually separate” *1221 from the building. See op. at 1219. On this point, I agree with the dissent that the district court found only “that the four relevant towers are a portion of the architectural work which includes the building and those four towers.” Leicester v. Warner Bros., 47 U.S.P.Q.2d 1501 , 1507 (C.D.Cal.1998); see op. at 1225. As the dissent further observes, the district court found it unnecessary to decide whether the streetwall towers were conceptually separable because it concluded as a matter of law that “the enactment of Section 120(a) had the effect of limiting the conceptual separability concept to situations not involving architectural works.” Id. at 1508 ; see op. at 1225-26. The district court concluded its analysis of the Architectural Works Copyright Protection Act (AWC-PA), Pub.L. No. 101-650, §§ 701-706, 1990 U.S.C.C.A.N. (104 Stat.) 5133, thusly:

Id. I agree with this conclusion as applied to the facts of this case.

The district court found, after…

dissenting:

I agree -with the majority that the district court did not clearly err in finding as a factual matter — after a thorough and thoughtful inquiry — that the streetwall portion of the Zanja Madre is part of the larger architectural work of the 801 Building, but I do not believe that ends the inquiry. 1 This is so because I do not believe this finding precludes a concurrent finding that the streetwall towers can also be considered conceptually separate from the building (as part of the rest of the Zanja Madre sculpture, for example). If the towers can be seen as conceptually separate from the 801 Building, then they are entitled to full copyright protection as a sculptural work under 17 U.S.C. § 102 (5), despite being part of an architectural work, unless we determine as a matter of law that the Architectural Works Copyright Protection Act (AWCPA), Pub.L. No. 101-650, §§ 701-706, 104 Stat. 5133 (codified at 17 U.S.C. §§ 101-102 , 120), completely eliminated separate copyright protection for pictorial, graphic and sculptural works (“PGS works”) that are a part of, but conceptually separate from, architectural works.

The majority avoids reaching this difficult question of…