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When Andrew Leicester saw his artistic creation reproduced on Hollywood’s big screen, he put out a bat signal for lawyers. Part of Leicester’s Los Angeles conceptual installation piece “Zanja Madre,” a dark commentary on Southern California’s reliance on water, had been turned into the Second Bank of Gotham for Warner Brothers’ production of “Batman Forever.” In one of the few cases to test whether copyrighted material captured in a movie is actionable, Leicester’s case made it all the way to the 9th U.S. Circuit Court of Appeals. On Wednesday, Batman won. A divided panel of the 9th Circuit held that since the gateway to “Zanja Madre” (or “mother ditch,” a reference to the primary irrigation canal which once fed Southern California’s orchards) is architecturally indistinguishable from the building it decorates, there could be no violation because buildings can’t be copyrighted. A lawyer for Warner Brothers said the decision would clarify the law for Hollywood’s dream factory. “Here in Southern California this is an important decision because of the studios,” said O’Melveny & Myers partner Robert Schwartz, who argued the case before the court. Schwartz said he gets weekly inquiries from production companies with similar copyright questions. “What’s helpful about this decision is it’s a common-sense decision that says you can’t deprive the public of its right to take pictures if you put a sculptural flourish in the work,” Schwartz said. Judge Pamela Ann Rymer wrote, “It seems counter-intuitive to suppose that Congress meant to restrict pictorial copying to some, but not all of, a unitary architectural work.” She was joined by Judge A. Wallace Tashima, who also wrote separately. The opinion’s third act was scripted by Judge Raymond Fisher. He, too, found that the portion of the “Zanja Madre” in question — four stylized towers and a gate which closes to form a vampire bat — was part of the building. But, he added, “I do not believe this finding precludes a concurrent finding that the streetwall towers can be considered conceptually separate from the building.” Fisher’s lengthy dissent attempts to find what the majority apparently did not: a rule saying when the reproduction of copyrighted materials, if part of a building, are actionable. He feared that under Tashima’s analysis of the case, murals, for example, would not be protected by copyright law. “This provides a great disincentive for artists to collaborate with architects,” Fisher wrote. Tashima addressed those concerns, saying Leicester v. Warner Brothers, 00 C.D.O.S. 9396, presented unique facts. “The case the dissent worries about is not before us,” Tashima wrote in a footnote. Architectural works, which include buildings, landscaped gardens and smaller structures such as verandas, are not protected under copyright law. The 9th Circuit held that since Leicester’s gates, albeit distinctive, employed some of the architectural elements of the building to which they were attached, they were not protected. Leicester argued that “conceptually distinctive” pictures, graphics and sculptures, even if affixed to a building, have traditionally been protected under copyright law. An attorney for Leicester could not be reached for comment.

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