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 statutory construction by concluding that the district court’s factual finding that the streetwall is part of the architectural work also constitutes a finding that the streetwall is not conceptually separable from the building. See Opin. at 1219 (“Leicester further maintains that the streetwall towers are a sculptural work which is ‘conceptually separate’ from the building and thus independently entitled to copyright protection. Again, the district court found otherwise and we cannot say its finding lacks support.” (footnote omitted)). The district court, however, did not make such a finding; it considered the issue of whether the towers are conceptually separable from the 801 Building to be an entirely different question from that of whether the towers are part of the architectural work. See Leicester v. Warner Bros., 47 U.S.P.Q.2d 1501 , 1507 (C.D.Cal. 1998) (stating that “if the four towers depicted are a part of the ‘architectural work’ of the building,” then “[i]t is apparent, subject to the possible application of the ‘conceptual se[p]arability’ doctrine, that the pictorial representations made by Warner Bros, are protected from an infringement suit by Section 120(a) [of the AWC-PA]” (emphasis added)). The district court properly recognized that, even if the towers are part of the architectural work, the section 120(a) exception permitting the photographing of architectural works would not apply if the towers are conceptually separable from the 801 Building and therefore subject to full copyright protection as a sculptural work.

After determining that the streetwall was part of the architectural work, the district court decided the legal question of whether the doctrine of conceptual separability for PGS works incorporated into an architectural work survived the enactment of the AWCPA — a question it considered to be “[t]he most difficult legal part” of the case. Id. at 1508 . The district court never made a factual determination of whether the towers were conceptually separable, though, because it concluded that “the former doctrine of ‘conceptual separability’ as it applied to a[PGS] work imbedded as part of a building, has been modified by the [AWCPA].” Id.

This conclusion on a matter of statutory interpretation is a question of law that we review de novo. See Fantasy, Inc. v. Fog- *1226 erty, 94 F.3d 553, 556 (9th Cir.1996). As I discuss below, I believe the district court erred in concluding that the AWCPA eliminated separate copyright protection for PGS works that are part of architectural works. Accordingly, I respectfully dissent.

DISCUSSION

Determining the AWCPA’s effect on PGS works incorporated in buildings is not a simple endeavor. As I explore below, the statute and legislative history do not provide a definitive answer in either direction. I recognize that, given the lack of clear guidance from the statutory language and legislative history, reasonable people can arrive at opposite conclusions. Nonetheless, I would resolve any doubt or ambiguity in favor of protecting the rights of the PGS artist. Several considerations inform this position. First, although we generally try to give meaning to every provision of a statute, see Reiter v. Sonotone Corp., 442 U.S. 330, 339 , 99 S.Ct. 2326 , 60 L.Ed.2d 931 (1979) (“In construing a statute we are obliged to give effect, if possible, to every word Congress used.”), when the meaning of a statute is ambiguous, we should attempt to avoid damaging existing rights absent a clear statement of a congressional intent to do so. This is in keeping with the general notion that “an amendatory act is not to be construed to change the original act or section further than expressly declared or necessarily implied.” 1A Norman J. Singer, Sutherland Statutory Construction § 22.30 at 267 (5th ed.1992).

Prior to the AWCPA, the prevailing legal view was that PGS works that were part of, but conceptually separable from, buildings were entitled to full copyright protection under the 1976 Copyright Act. See H.R. Rep. No. 94-1476, at 55 (1976) (“Purely non-functional or monumental structures would be subject to full copyright protection under the bill, and the same would be true of artistic sculpture or decorative ornamentation or embellishment added to a structure.”); accord 1 Melville B. Nimmer & David Nimmer, Nimmer On Copyright § 2.08[D][2][b], at 2-128 (1997). We should presume that Congress was aware of this legal context when it amended the Copyright Act through the AWCPA. See Albernaz v. United States, 450 U.S. 333, 341-42 , 101 S.Ct. 1137 , 67 L.Ed.2d 275 (1981) (“[I]t is appropriate for us ‘to assume that our elected representatives ... know the law.’ ” (quoting Cannon v. University of Chicago, 441 U.S. 677, 696-697 , 99 S.Ct. 1946 , 60 L.Ed.2d 560 (1979))). We should not construe the AWCPA as altering this established practice without a clear statement of legislative intent.

Second, as the AWCPA’s legislative history emphasizes, the purpose of the Act was to add protection for architectural works. See H.R. Rep. No. 101-735, at 20 (“The sole purpose of legislating at this time is to place the United States unequivocally in compliance with its Berne Convention obligations.”). 2 The United States has consistently taken a minimalist approach to implementing the Berne Convention, “making only those changes in U.S. law absolutely required to meet our treaty obligations.” 136 Cong. Rec. E259 (daily ed. Feb. 7, 1990) (statement of Rep. Kastenmeier). The Berne Convention required Congress to add copyright protection for buildings in constructed form. Nothing in the Berne Convention required Congress simultaneously to eliminate separate copyright protection for PGS works that are part of an architectural work, and those who would read the AWCPA as extinguishing those existing rights should have the burden of proving Congress’ intent to so do. Significantly, there is nothing in the AWCPA warning artists that if they incorporate their PGS works into the *1227 publicly viewable portion of a building, they will no longer be able to prevent others from commercially exploiting their works.

Third, it would be odd to interpret the AWCPA as eliminating protection for certain works of PGS artists when, contemporaneously with the AWCPA, Congress enhanced the rights of PGS artists through separate legislation. The bill that contained the AWCPA also included the Visual Artists Rights Act of 1990 (“VARA”). See Pub.L. No. 101-650, §§ 601-10, 104 Stat. 5089 , 5128-33 (1990). VARA provided, for the first time in American copyright history, limited “moral rights” for authors of works of “visual art,” a subset of PGS works. 3 See 17 U.S.C. § 106A. Moral rights “afford protection for the author’s personal, non-economic interests in receiving attribution for her work, and in preserving the work in the form in which it was created, even after its sale or licensing.” Jane C. Ginsburg, Copyright in the 101st Congress: Commentary on the Visual Artists Rights Act and the Architectural Works Copyright Protection Act of 1990, 14 Colum. Vla J.L. & Arts 477, 478 (1991). Absent a clear statement of legislative intent, I would not interpret the AWCPA as destroying PGS artists’ established intellectual property rights, when, at the same time, Congress was expressing through VARA a desire to enhance the rights of PGS artists. 4

I. The Architectural Works Copyright Protection Act

In examining the effect of the AWCPA, I believe it useful to begin with an examination of the pre-AWCPA regime to put the statute in the proper historical context.

A. Pre-AWCPA Protection for Architecture

Before passage of the AWCPA, the 1976 Copyright Act contained no explicit protection for constructed architectural works. Architectural plans, however, were protected — first as scientific drawings, which were included in the definition of PGS works, see 1 Nimmer On Copyright § 2.08[D][2][a], at 2-117, and then, following passage of the Berne Convention Implementation Act of 1988, as explicitly within the definition of PGS works, see Pub.L. No. 100-568, § 4 (a)(1)(A), 102 Stat. 2853 (1988) (codified at 17 U.S.C. § 101 ). A building as constructed generally was considered a “useful article,” and thus the design of a building as constructed could only be copyrighted to the extent that the “ ‘design incorporated] pictorial, graphic or sculptural features that [could] be identified separately from, and [were] capable *1228 of existing independently of, the utilitarian aspects of the article.’ ” 1 Nimmer On Copyright § 2.08[D][2][b], at 2-127 (quoting 17 U.S.C. § 101 ). Accordingly, “copyright [could] be claimed in ‘artistic sculpture or decorative ornamentation or embellishment added to a structure,’ but not in the structure per se.” Id. at 2-128 (footnote omitted) (quoting H.R. Rep. No. 94-1476, at 55). If there was a conceptually separable PGS work attached to a building, the author of that PGS work could seek PGS copyright protection for that work, but no copyright could be obtained for an entire building unless the building was a “[pjurely nonfunctional or monumental 'structure[ ].” Id. at 2-127 .

Under this regime, people were free to take pictures of buildings, but if the building’s exterior contained a conceptually separable (and therefore copyrightable) PGS work, the PGS copyright owner could sue for infringement — subject, of course, to the exception for “fair use” under 17 U.S.C. § 107 . 5

B. Changes Made by the AWCPA

The AWCPA only applies to buildings constructed on or after the statute’s enactment date, December 1, 1990. See Pub.L. No. 101-650, § 706 , 104 Stat. 5134 . The AWCPA created a new category of copyrightable subject matter: “architectural works,” 17 U.S.C. § 102 (a)(8), which Congress defined to include a building as constructed, see id. § 101. In creating this new category, Congress also created a new regime for determining when an architectural work is copyrightable. Architects can now copyright buildings as constructed without regard to whether the buildings satisfy the separability test applicable to PGS works embodied in useful articles. See H.R. Rep. No. 101-735, at 20. 6 Concerned, however, that architects might use this newly granted right to copyright buildings to the detriment of the public, Congress placed an important limitation on the exclusive rights that a copyright bestowed on the author of the architectural work: “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.” 17 U.S.C. § 120 (a); see also H.R. Rep. No. 101-735, at 22 (noting that the exception “serve[s] to balance the interests of authors [of architectural works] and the public”). In other words, if you want to copyright a building as constructed and thereby prevent others from constructing buildings *1229 that copy your design, you have to permit people to take, display and distribute pictures of your building without limitation. The driving purpose of the AWCPA, thus, was not to expand the public’s right to photograph buildings, but to protect the works of architects; the limitation on photography was an important but secondary purpose, concerned with confining the scope of this new right.

C. AWCPA’s Effect on Separate Copyright Protection for PGS Works

Nothing in the text of the AWCPA expressly eliminates or retains separate PGS protection for conceptually separable PGS works attached to buildings. As previously noted, this absence of a clear statutory mandate favors preserving the existing, historical rights of PGS artists. The conclusion that Congress did not alter the availability of separate protection is buttressed by a reasonable interpretation of the legislative history. Although the legislative history is ambiguous, its discussion of the concept of “election of protection” and treatment of monumental works of architecture, in my view, support the conclusion that Congress did not intend to eliminate separate protection for PGS works attached to buildings. Moreover, I do not believe the elimination of the separability test to determine the copyright-ability of architectural works and the limit of one architectural work per structure command a contrary result.

1. Election of Protection

The AWCPA’s legislative history reflects Congress’ express desire that the extension of copyright protection to buildings as constructed not affect an author’s pre-AWCPA ability to obtain copyright protection for architectural blueprint plans, drawings and models. See H.R. Rep. No. 101-735, at 19 (“Protection for architectural plans, drawings, and models as pictorial, graphic, or sculptural works under section 102(a)(5), title 17, United States Code, is unaffected by this bill.”). In addition, Congress specifically stated that an architect should be able to elect both forms of protection concurrently:

Id. (emphasis added). Of course, if the architect elects coverage under section 102(a)(8), then section 120(a) applies to limit the scope of the architect’s exclusive rights in his copyright — if the building is in a publicly visible place, he cannot prevent others from creating two-dimensional reproductions of the building.

Footnote 41 in the above quoted passage addresses the situation where there is an artistic work incorporated into a building. In my view, this cryptic and ambiguous footnote can reasonably be read to support the notion that the AWCPA did not alter the availability of separate protection of PGS works attached to buildings:

Id. at 19 n. 41. Congress’ use of the present tense in the first sentence — “may separately qualify” — is evidence that separate *1230 copyright protection for PGS works that are part of architectural works remains available. If there is a conceptually separable section 102(a)(5) PGS work permanently embodied in a section 102(a)(8) architectural work, the architect can elect protection under either or both sections provided he owns the copyright interest in the PGS work. If a separate artist created the PGS work (and has not assigned the copyright to the architect), 7 the architect is limited to a copyright in the building as constructed and a copyright in the blueprint plans, whereas the artist retains a copyright in the PGS work. 8 The scope of the architect’s copyright in the building, of course, is limited by section 120(a). Because section 120(a) only applies to limit the scope of rights of a “copyright in an architectural work,” however, it has no effect on the artist’s copyright in his PGS work. As Professor Ginsburg has stated, “if a building contains elements separately protectable as pictorial, graphic or sculptural works (for example, a gargoyle), the unauthorized pictorial representation of that element may be an infringement of the pictorial, graphic or sculptural work (not of the work of architecture).” Ginsburg, supra at 995. The artist’s PGS copyright is still limited by the fair use doctrine of section 107, though, which will protect the average tourist from infringement liability but will prevent most unauthorized commercial exploitations of images of the work.

This reading of the legislative history is consistent with the rationale underlying Congress’ explicit decision to provide a blanket photograph exemption — section 120(a) — rather than relying on the fair use doctrine. See H.R. Rep. No. 101-735, at 22. As the House Report accompanying the AWCPA noted:

Id. Congress was aware of the commercial market for posters and postcards of famous or interesting buildings, and it did not want its extension of copyright protection to constructed architectural works to affect that market. But Congress did not address the commercial market for posters and postcards of specific, copyrighted PGS works that are embedded in, or in some other way a part of, a building. 9 Entrepreneurs desiring to sell postcards that featured a building’s attached artwork always needed to obtain a license from the PGS artist or risk a copyright infringement suit. In this way, the PGS artists were in a position to control the commer *1231 cial exploitation of two-dimensional reproductions of their independent, creative contribution to a larger work. I interpret the absence of explicit congressional intent to eliminate that ability to be further evidence that the AWCPA was not intended to affect the separate copyrightability of PGS works incorporated into buildings.

2. Monumental Works of Architecture

The AWCPA’s treatment of monumental, nonfunctional works of architecture illustrates that Congress knows how to express clearly its intent to change the manner in which a specific subject matter is protected under the Copyright Act. According to the House Report: “Monumental, nonfunctional works of architecture are currently protected under section 102(a)(5) of title 17 as sculptural works. These works are, nevertheless, architectural works, and as such, will no[w] be protected exclusively under section 102(a)(8).” H.R. Rep.' No. 101-735, at 20 n.43. 10 When Congress looked at this class of works, which under the 1976 Copyright Act had been afforded full copyright protection as sculptural works, see H.R. Rep. No. 94-1476, at 55, and intended to eliminate that protection and replace it with protection solely as architectural works, it made its intent clear in the legislative history. Logically then, if Congress similarly had intended the AWCPA to eliminate separate PGS copyright protection for PGS works imbedded in architectural works, it would have done so expressly as well.

According to Judge Tashima’s concurrence, Congress’ treatment of monumental works lends support to the proposition that it intended to remove from PGS classification those works that were previously protectable as sculptural works and protect them solely as architectural works. See Cone, at 1224. This view seems to conflate monumental works with sculptural works. But monumental works are a small subset of sculptural works (at least, they were), and sculptural works, in turn, are a subset of PGS works. Congress specifically singled out this subset of PGS works for special treatment. It explicitly removed monumental works from PGS classification and placed them under the rubric of architectural works, and said nothing as to sculptural or PGS works in general.

Congress’ treatment of monumental works makes sense because monuments, which are generally nonfunctional, frequently blur the line between sculpture and architecture. Significantly, the rationale for changing the treatment of monuments does not transfer well to conceptually separable PGS works attached to architectural works. Unlike monumental, nonfunctional works of architecture, which “are, nevertheless, architectural works,” PGS works attached to an architectural work are not themselves works of architecture. Despite being attached to an architectural work, they are, nevertheless, PGS works and should be entitled to all of the exclusive rights Congress has extended to works of that classification.

3. Elimination of Separability Test for Determining Copyrightability of Architectural Works

According to the House Report:

H.R. Rep. No. 101-735, at 20 (footnotes omitted). While it is true that Congress did not want architects to have to survive the morass of separability in order to obtain copyright protection for their creations, there is nothing in the AWCPA that suggests Congress intended to prevent sculptors and other artists who created PGS works that were attached to buildings from attempting to satisfy the difficult separability test and thereby gain full PGS copyright protection for their works. I believe this distinction between the copy-rightability of architectural works and the copyrightability of PGS features that are part of architectural works is critical. Because buildings themselves traditionally have been considered “useful articles,” see 1 Nimmer On Copyright § 2.08[D][2][a], at 2-121 to 2-122, it would be extremely difficult, if not impossible, for an architect to obtain a copyright in a functional building if he were forced to satisfy the conceptual separability test. See Michael F. Clayton & Ron N. Dreben, Copyright Protection for Architectural Works: Congress Changes the Rules, 4 J. Proprietary Rts. 15 (Mar.1992) (“Given the inherent difficulty of physically or conceptually separating a building’s design from its ‘utilitarian’ aspect or function, copyright protection for structures in this country [was] virtually nonexistent [prior to the AWCPA].”). In contrast, there is nothing inherently more difficult about applying the conceptual separability test to PGS features that are part of buildings than to PGS features that are part of other useful articles, yet Congress has not eliminated the test in those other contexts. ' Absent clear instruction from Congress, I believe we should continue to apply the conceptual separability test to determine the 120(a)(5) copyrightability of PGS works that are in some way a part of an architectural work. This approach has been employed for years and gives meaning to the extant rights of artists and architects.

The concurrence reads the AWCPA as replacing the conceptual separability test for PGS works embedded in architecture with a clear, bright-line rule. Its interpretation of the Act, however, sheds little light on the complicated interaction between the copyright protection of PGS works and architectural works. The concurrence proposes two very different ways of treating PGS works attached to, or embedded in, architectural works. On the one hand, it suggests Congress intended to paint with a broad brush, using the AWC-PA to wipe out entirely PGS rights for all works embedded in buildings. On the other hand, it suggests an entirely different, and far narrower, reading of the Act in which Congress intended only to draw a fine line separating PGS protection from architectural work protection. This, as I explain below, is not so different from the current conceptual separability scheme.

The fust approach is unnecessarily broad and threatens to alter deeply the relationship between artist and architect, not to mention art and architecture. The concurrence believes the legislative history of the Act reveals that Congress intended to make the new protection given to architectural works under section 120 “the exclusive remedy for PGS works embodied in an architectural work.” Conc. at 1222. This reading of the Act suggests any PGS work that can be considered “part” of a building automatically loses its PGS identity and protection. Such a work is entitled to receive only the lesser degree of protection afforded to architectural works. The rule makes no consideration for size of the work or degree to which the work is incorporated into a building. If an artist created even the smallest painting on the front of a building, she would lose PGS copyright protection in that work. This provides a great disincentive for artists to collaborate with architects.

The second approach posited by the concurrence tries to avoid this problem by *1233 setting forth a narrower, functionality-based test. Under this view, the AWCPA applies only to PGS works that are “so functionally a part of a building” that application of the conceptual separability test would render the section 120(a) exception for reproduction of architectural works meaningless. Cone, at 1222. But this approach hardly creates clarity. At best, it preserves the status quo by serving as a proxy for conceptual separability. After all, it, too, requires a trial court to make a factual determination as to the degree of functionality a PGS work retains once it is considered part of an architectural work. Here, the district court found only that the streetwall had “functional aspects” and that, therefore, it was part of the architectural work. It did not apply any sort of functionality test to discern whether the streetwall was “so functional” that granting it PGS protection would have rendered application of section 120(a) to the 801 building meaningless. In fact, we have no idea from the district court’s findings whether Warner Bros, could have filmed the 801 building without capturing a part of Zanja Madre.

Moreover, a test based solely on functionality creates yet another element of confusion because, in the legislative history of the AWCPA, Congress utilizes the term “functionality” as part of its proposed test for determining the copyrightability of architectural works. See H.R. Rep. No. 101-735, at 20-21, and supra n. 6. According to the House Report, an architectural work is copyrightable only to the extent its design elements are not “functionally required.” With this in mind, the application of a functionality test for PGS works embedded in architecture might produce an ironic result. Under the concurrence’s view, if a PGS work is deemed a “functional” part of a building, it loses its PGS protection and gains architectural work protection. But the very fact it has been determined to be “functional” arguably may defeat the copy-rightability of the building itself, since in order for the architectural work to be copyrightable its design elements may not be “functionally required.”

I recognize there is, on the surface, a degree of uncertainty in leaving alone the current scheme of protection for PGS works. In extreme cases, it may allow an entire architectural work to gain PGS protection, a result seemingly in tension with the goal of the AWCPA. This would happen, for instance, where a PGS work so fully dominated an architectural work that reproduction of the architectural work would be impossible without infringing the artist’s PGS copyright. This would seem to be a rare case, however, and the current regime is equipped to handle it. In such a circumstance, as has been the case until now, a trial court could find that the PGS work was so integrated into the architectural work that it was not conceptually separable and, therefore, effectively lost its PGS status. Upon this finding, the PGS work would be protectable only as part of the architectural work. This, of course, preserves ambiguities at the margins, but law cannot be applied to the arts with mathematical precision.

Other difficulties that might arise from my reading of the AWCPA, moreover, remain unresolved by the concurrence. The concurrence’s view, for example, still forces a commercial exploiter to determine whether a PGS element of a building is separately copyrighted since the piece may not be “so functional” a part of the architectural work as to render applicability of section 120(a) meaningless. To a commercial exploiter, degree of functionality should be no easier to determine than conceptual separability.

Ultimately, the only way to maneuver cleanly around these admittedly difficult problems is to read (as the concurrence suggests) the AWCPA so broadly as to eliminate fully the rights of any PGS work that is even a modest part of an architectural work, with no attention given to size of the work, placement, impact on the building, degree of functionality or possible conceptual separability. I believe this goes too far. It would discourage an artist from painting even a small work on a *1234 building. A sculptor would rightfully be wary of placing a piece too close to a building, or on a pedestal made with the same themes or patterns as the architectural work. The AWCPA need not be read to compel such a drastic result.

4. Limit of One Architectural Work per Structure

Representative Kastenmeier, the House sponsor of the AWCPA, clarified that what is protected by section 102(a)(8) “is the design of a building or other three-dimensional structure. The term ‘design’ is intended to encompass both the overall shape of a structure as well as protectable individual elements.” 136 Cong. Rec. E259, E260 (daily ed. Feb. 7, 1990) (statement of Rep. Kastenmeier). He emphasized, however, that there is “only one ‘architectural work’ per structure; separate registrations may not be sought for multiple protectable elements in any given structure.” Id. If an architect were able to copyright individual architectural elements as architectural works, it would retard the progress of architecture by preventing others from using, adapting or modifying those elements in new, useful and interesting ways. See id. (“This provision recognizes both that creativity in architecture frequently takes the form of a selection, coordination, or arrangement of unprotectable individual elements into an original, protectable whole, and that an architect may incorporate new, protectable design elements into otherwise standard, unprotectable building features.”). The nature of architecture as a utilitarian art form justifies this limitation on copyright protection. That same concern does not carry over into the nonutilitarian world of sculpture. Accordingly, the statement that there is only one architectural work per structure does not mean there cannot be multiple protectable PGS tvorks in a structure.

D. Other Provisions in the Copyright Act

Interpreting the AWCPA as preserving PGS artists’ intellectual property rights in their works that are part of buildings is consistent with language found elsewhere in the Copyright Act. In particular, one provision of VARA amended 17 U.S.C. § 113 , which governs the scope of exclusive rights in PGS works. See Pub.L. No. 101-650, § 604 , 104 Stat. 5089 , 5130-31. That section, entitled “Removal of Works of Visual Art from Buildings,” governs the scope of moral rights afforded to authors whose PGS works are incorporated into buildings. For works of visual art that have been incorporated into buildings after the passage of VARA, the following rules apply:

17 U.S.C. § 113 (d)(2). Congress’ inclusion of a provision covering PGS works that are incorporated into buildings, in a section governing the scope of PGS rights, is strong evidence that it recognized that such works would continue to enjoy full PGS copyright protection.

Also, interpreting the AWCPA as eliminating separate PGS protection for works incorporated into buildings would subject what would otherwise be PGS works to 17 *1235 U.S.C. § 120 (b), which permits “the owners of a building embodying an architectural work” to make changes or destroy the building “without the consent of the author or copyright owner of the architectural work.” Without continued application of conceptual separability for PGS works incorporated into buildings, those works, as part of the “architectural work,” could be altered or destroyed without the permission of their authors. This interpretation would have Congress acting simultaneously to enhance, through VARA, the rights of authors of works of visual art while reducing, through the AWCPA, the rights of authors whose works of visual art are part of a building. An interpretation that preserves PGS protection for works attached to buildings would avoid this inconsistency. 11

Finally, the Copyright Act’s continued reference to PGS works incorporated in buildings provides additional evidence that Congress did not intend the AWCPA to eliminate PGS protection for such works. The Copyright Act requires registration of all “United States work[s]” as a prerequisite for a copyright infringement action. See 17 U.S.C. § 411 . Included in the definition of a “United States work” is “a pictorial, graphic, or sculptural work incorporated in a building or structure” located in the United States. 17 U.S.C. § 101 . This explicit reference to PGS works incorporated in a building was added in 1988 by the Berne Convention Implementation Act. See Pub.L. No. 100-568, § 4 (a)(1)(C). If Congress viewed the AWCPA as eliminating separate PGS protection for post-1990 PGS works incorporated into buildings, then presumably Congress would have amended the definition of “United States work” to differentiate between pre and post-AWCPA structures. 12

CONCLUSION

The language of the AWCPA did not explicitly eliminate separate PGS copyright protection for artistic works that are incorporated into buildings. A reasonable reading of the legislative history supports the view that such separate protection remains available. Consequently, a PGS work that is part of, but conceptually separate from, an architectural work can enjoy full PGS copyright protection. Because PGS copyrights are not subject to the AWCPA’s photograph exemption codified in section 120(a), Warner Bros.’ pictorial reproductions of Leicester’s streetwall towers in the film Batman Forever would not be protected by that section if Leicester’s streetwall towers are conceptually separable from the 801 Building. Therefore, I would reverse the decision of the district court and remand for that conceptual separability determination. If the streetwall towers are conceptually separable, Leicester would be able to proceed to a trial on the merits of his copyright infringement claim.

Today, we erect a legal wall on a weak foundation. Depriving artists of PGS protection if their works are part of an architectural work is a drastic change in the law. It threatens to deprive the public of innovative and challenging forms of artistic and architectural expression. This result seems inconsistent with the overarching goals of the AWCPA and the VARA, taken together. Because Congress did not speak clearly on this important copyright issue, and I am not persuaded it intended to so *1236 alter artists’ PGS rights, I respectfully dissent.

. Incidentally, I disagree with the statement in the majority opinion that the "streetwall was not a creative aspect of Leicester's work.” Concededly, the concept of including a street wall was not Leicester’s, but his expression of that idea was undoubtedly creative.

. The Berne Convention, referred to in the AWCPA's legislative history as "The World’s Most Important Copyright Treaty,” H.R. Rep. No. 101-735, at 10, Required Signatory Countries To Provide, inter alia, Copyright Protection For " 'Three-Dimensional Works Relative To ... Architecture.’ ” 1 Nimmer On Copyright, § 2.20, at 2-213 (quoting Berne Convention (Paris text), art. 2(1)).

. According to 17 U.S.C. § 101 :

. Moreover, portions of the statutory language added by VARA suggest Congress’ recognition that PGS works that are part of buildings retained separate protection. See infra Part I.D.

. Whether a use is a "fair use" depends on an analysis of four factors:

17 U.S.C. § 107 .

. Although the statute itself does not set forth how a court will determine copyrightability of architectural works, the house report offered some illumination:

H.R. Rep. No. 101-735 at 20-21 (footnote omitted). See also Raleigh W. Newsam II, Architecture and Copyright — Separating the Poetic from the Prosaic, 71 Tulane L. Rev. 1073 (1997).

. In this case, Leicester’s contract explicitly provided that he retained all rights under the Copyright Act.

. Alternatively, this footnote might be read as prohibiting the architect from obtaining a section 102(a)(8) copyright in the constructed building when the building incorporates a separately authored PGS work, thus leaving the architect with only a copyright in the building plans. Although such a reading would retain separate copyright protection for PGS works incorporated into architectural works, it would do so at the expense of the architect's 102(a)(8) copyright. The reading I suggest in text preserves a greater degree of copyright protection for both the architect and the PGS artist, and avoids the dilemma posed by the concurrence.

.Congress' assumption even as to architectural works has been sharply criticized. See, e.g., Clark T. Thiel, The Architectural Worlcs Copyright Protection Gesture of 1990, Or, “Hey, That Loolcs Like My Building!”, 7 De-paul J. Art & Ent. L. 1 (1996); Michael E. Scholl, Note, The Architectural Worlcs Copyright Protection Act of 1990: A Solution or a Hindrance?, 22 Mem. St. U.L. Rev. 807 (1992).

. As the district court noted, sea Leicester 47 U.S.P.Q.2d at 1508, the word ‘how” appears as "not” in the text of the House Report. In view of the Report’s use of the word "nevertheless” in that sentence, I agree that it is a typographical error and should be "now.” See id.

. Cf. Significantly, in his contract, Leicester retains the right to buy back the entire Zanja Madre sculpture, including the streetwall, should the 801 building ever be demolished. This suggests that both artist and architect, at least, considered the streetwall to be conceptually — and physically — separable.

. Congress was capable of amending the Copyright Act in a way that accounted for the 1990 changes to the Act. See 17 U.S.C. § 113 (d)(d)(l) (stating that the moral rights provisions added by VARA shall not apply where “the author consented to the installation of the work in the building either before the effective date set forth in section 610(a) of the Visual Artists Rights Act of 1990, or in a written instrument executed on or after such effective date ... ”).