Source: iCommons.org

September 8, 2006

Five years ago on this coming Monday, the World Trade Center ceased to exist. On the way to a dinner party recently on the upper West side of Manhattan, I stopped at the site where it once stood to take some photographs. There’s not much to capture though, as five years after the Twin Towers came down there is still little more than a gaping void in the ground.

What will eventually go up in their place is the Freedom Tower, a long debated and long planned memorial to those who died on September 11. But the rebuild in that space has been hampered by security concerns, power grabs, and what’s of particular interest to the commons community – a debate about the originality of the planned 1,776-foot building.

The lead architect at SOM, the firm of record for the WTC site, was sued in the U.S. District Court of New York by Thomas Shine, a young designer who claimed that the Freedom Tower design that SOM’s David Childs submitted was a direct copy of the “Olympic Tower,” student-piece that Childs reviewed while the younger architect studied at the Yale School of Architecture in 1999.

Shine vs. SOM became the first major case of architectural copyright infringement in U.S. history, in large part because of its high profile – the design of the Freedom Tower was on the cover of New York papers for many months. But cases of architectural copyright don’t often make it to the court for another reason. The field itself is built on the idea that new work is built on old work, new ideas remixed from old ones; and architects are reluctant to challenge that prevailing norm. But in this case, the court found that Childs appeared to have gone beyond permissible architectural borrowing. The design of the two proposed buildings were so similar – both featured a twisting diamond-shaped facade unusual in architecture – that the court ruled that the case could proceed to trial. (Judge for yourself.)

Once the court ruled that the case could indeed proceed, the next question raised was whether the buildings were so greatly alike that the new design violated U.S. copyright law. Under U.S. code, architectural copyright is established by the 1990 Architectural Works Copyright Protection Act, a law that protects “the overall form as well as the arrangement and composition of spaces and elements in the design, but does not include individual standard features.” So for copyright infringement to be proven, the ‘stolen’ aspects of an architectural work must be significantly unique. That both your building and mine have round windows is probably not going to convince the judge. But it might be compelling, both buildings have windows are made of, say, recycled Heineken bottles, tricycle wheels, and barbed wire (maybe now is a good time to admit that I’m no architect).

In my mind, Shine vs. SOM raises an interesting question – is there in fact an architectural commons and if so, what is its nature? If this case hinged upon the Xeroxing of a building plan, then it would be somewhat clear cut. But consider whether you find Childs’ argument persuasive.He contends that the similarities between the designs exist because both he and Shine trained at the Yale School of Architecture, both studied architecture in America in roughly the same time period, and both were greatly influenced by the same great architects and artists. So were these just two folks drawing from the same creative pool?

The individual architect would be somewhat alone among the artists if she sat down in a desk chair and pulled new creations from the ether. More likely, of course, she’s teasing from her mind the strong anchoring lines of the skyscraper she dissected in grad school. Or the sweeping outline of a museum or cathedral she sketched on her grand tour of Europe. To my mind, this seems entirely the point of why we just don’t build towers that look like stacks of Lego blocks and be done with it.

The challenge and scholarship of building great buildings is a social endeavor. We, and by ‘we’ I mean human beings, start by designing and building from scratch. We see how that goes, re-sketch, tweak, and we build again. Without knowing any better, it seems that’s precisely how we advance in architecture – by improving on how some genius before us solved the dilemmas of architecture to build ever more beautiful, breathtaking, more resilient forms.

That building is a social endeavor reminds me of an anthropology professor of mine named John Vlach who studied the shotgun shacks of the American South. These shacks are considered iconic Americana, but Prof. Vlach would tell us of how one can see almost identical structures on the beaches of West Africa. Shotgun houses only became a part of the American cultural stream when they were recreated by slaves in the New World. Perhaps a less substantial but still affirming example – I’m currently reading Ayn Rand’s The Fountainhead, about a young architect named Howard Roark who outright refuses to build an ‘unoriginal’ building. Let other architects improve upon French villas and Greek porticos, but Roark’s buildings must erupt fully formed from his mind’s eye. For his purity, Roark is (at the point in the book I’ve read to) ostracized by the academy and forced to toil in a poorly lit office in some unglamorous part of Manhattan.

But while architecture, like all art, or all creatively really, builds upon the work of others, that’s not to say that Childs’ Freedom Tower design didn’t borrow a bit too heavily from Shine’s genius. Was this a case of remix or theft? Unfortunately for us, we won’t have the clarifying power of the court’s decision in this case to help us understand the answer to that. Childs and Shine settled in mid-July. Childs withdrew a claim for legal fees that he had sought from Shine and Shine agreed not to pursue his claims any further.

Nancy is a former U.S. Capitol Hill staffer currently working for former Virginia Governor Mark Warner’s Forward Together PAC. She is also a contributing editor at the Personal Democracy Forum. More at nancyscola.com.