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” *1221from 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:
If this interpretation is correct, the former doctrine of “conceptual separability” as it applied to pictorial, graphic or sculptural work embedded as part of a building, has been modified by the 1990 amendments. The court adopts this interpretation of the Act.
Id. I agree with this conclusion as applied to the facts of this case.
The district court found, after receiving “much evidence ... pro and con on this point,” that “the towers are a part of the architectural design of the building.” Id. at 1507. As the majority opinion summarizes, see slip op. at 15216-18, the district court made detailed findings in support of this ultimate finding. I quote those findings in full:
The court has concluded that the preponderance of the evidence is that the four towers are a part of the architectural work and that therefore, Section 120(a) applies, allowing the pictorial representations made by the defendant.
The conclusion is reached because the preponderance of the evidence is that the four towers have functional aspects designed to be a part of the building plan. The towers constitute a “street-wall,” most clearly illustrated in exhibit 193, which is a photograph taken looking southerly along Figueroa Street from the main building entrance at the corner of 8th and Figueroa. First, the towers are placed exactly to match the distance apart of the risers or pilasters of the building. Secondly, the towers up to their decorative parts consist of the same material as the pilasters of the building and are clearly designed to give the impression that the building continues along to the end of the property line, as apparently required by CRA. The bases of the towers are identical with those of the pilasters, the pink granite is the same, and the green marble is the same. In addition, from their appearance, the four towers are otherwise also designed to match up with the architecture of the new building. Exhibit 197 shows that the lanterns on the lantern towers are designed to match up to the lanterns at the third floor level attached to the building proper (see exhibits 193 and 197). In addition, the four columns also serve another functional purpose. They served to channel the traffic into the courtyard through gates which are affixed to the towers and can be closed when the courtyard is to be closed (presumably at night). Thus, the columns serve the functional purpose not only of directing the traffic into the courtyard but of controlling that traffic. The “streetwall” purpose is also emphasized by the use of three more “smoke towers” on the opposite corner of the building on 8th Street, again placed at the building line the same distance apart as the pilasters of the building (exhibit 195). In addition, it must be said that the requirement of the CRA that there be a street wall continuing along the building line to the end of the property is an architectural purpose, not an artistic purpose, and was imposed as an architectural requirement from the beginning. The artist and architect carried out this architectural requirement of CRA. The towers contain artistic work, particularly at the tops thereof, which *1222are purely artistic work incorporated into the tower structure and design. The court concludes that the preponderance of the evidence is that the towers are a part of the architectural design of the building.
Id. at 1507.
In these factual circumstances, where a joint architectural/artistic work functions as part of a building, the district court concluded that § 120(a)’s exemption1 applied to protect Warner Bros.’ pictorial representation of the streetwall towers against a claim of copyright infringement. I agree with that conclusion in the narrow circumstances of this case.2 To hold otherwise, as the dissent apparently would do, would completely eviscerate the purpose and protection of § 120(a)’s exemption. I do not believe that that was Congress’ intent in enacting the AWCPA.
There is ample support in the legislative history of the Act that the protection for architectural works in 17 U.S.C. § 102(a)(8) is now the exclusive remedy for PGS works embodied in an architectural work — at least for those PGS works that are so functionally a part of a building that § 120(a)’s exemption would be rendered meaningless for such buildings, if conceptual separability were applied to them. A contrary reading of the AWCPA would countermine Congress’ intent in creating the “pictorial representation” exemption from copyright protection for architectural works. I thus read the AWCPA as rejecting application of the conceptual separability test where the architectural work and the artistic work are so closely and functionally intertwined as in this case.
Under the dissent’s reading of the AWCPA, any copyrightable architectural work containing conceptually separable PGS elements (e.g., stained glass windows) would receive full copyright protection under § 102(a)(5), while those containing “original design elements” which are not separable would be subject to the “pictorial representation” exemption. The difficulty with this interpretation is that it is completely unclear how a potential infringer — or an artist or architect, for that matter — would be able to distinguish between the two, especially considering that this circuit has never addressed the conceptual separability doctrine and there is no uniform standard elsewhere. To require one to wade through the morass of conceptual separability before he can exercise the right granted by § 120(a) and be assured that his pictorial representation is non-infringing cannot be what Congress intended. See H.R. REP. NO. 101-735, at 6952 (1990) (stating that protection for architectural works should be determined “free of the separability conundrum presented by the useful articles doctrine applicable for [PGS] works”).
Because the Act itself does not provide a clear answer on this issue, we must look to the legislative history of the AWCPA. See United States v. Hookings, 129 F.3d 1069, 1071 (9th Cir.1997) (stating that when interpreting a statute, the court should study its legislative history if the language of the statute is unclear). And that legislative history supports the position that *1223functional PGS works embedded in a building are no longer eligible for conceptual separability treatment. For example, the House Committee on the Judiciary stated:
By creating a new category of protecta-ble subject matter, [architectural works,] in new section 102(a)(8), and, therefore, by deliberately not encompassing architectural works as [PGS] works in existing section 102(a)(5), the copyrightability of architectural works shall not be evaluated under the separability test applicable to [PGS] works embodied in useful articles.
H.R. Rep. No. 101-735, at 6951 (emphasis added). Moreover, one of the goals of the 1990 amendments was to protect architectural works “free from entanglement in the controversy over design protection and conceptual separability.” 136 Cong. Rec. E259 (daily ed. Feb. 7, 1990) (remarks of Mr. Kastenmeier). Under the dissent’s approach, however, the quagmire of conceptual separability would only deepen in cases where pictorial representations of a building were at issue.
The dissent relies heavily on the legislative history concerning the architect’s right to elect to sue under § 102(a)(5)^ — the “plans” provision — and § 102(a)(8) — the “architectural work” provision — and concludes that, since an architect still may sue for the unauthorized use of his plans, a PGS copyright owner, by necessary implication, also must be able to sue under the old version of § 102(a)(5). See H.R. Rep. No. 101-735, at 6950 (“An individual creating an architectural work by depicting that work in plans or drawing [sic.] will have two separate copyrights, one in the architectural work (section 102(a)(8)), the other in the plans or drawings (section 102(a)(5)).”).
It does not follow, however, that because Congress did not intend that the new statute would change the extent of protection for architectural plans and drawings, it also intended that the nature of the protection for PGS works attached to an existing building would remain static. It is altogether feasible to allow an architect to elect to sue for the unauthorized reproduction of his drawings as a separate artistic work entitled to its own copyright protection without running afoul of the pictorial representation exception mandated by Congress. Conversely, providing full § 102(a)(5) protection to a PGS work embodied as a functional element in an architectural work would eviscerate the pictorial representation exception because one could not photograph, draw, paint, etc. (subject to the fair use doctrine) any building that had such a PGS work embodied in it. Congress specifically noted the “important public purpose” served by allowing pictorial representations of our nation’s buildings. H.R. Rep. No. 101-735, at 6953 (noting that “numerous scholarly books on architecture are based on the ability to use photographs of architectural works”). Thus, we should not read the AWCPA in a way that would inhibit those important public uses.
The dissent reads footnote 413 of the House Report as supporting its position. That footnote, however, can be interpreted in at least two plausible ways. The footnote states, in pertinent part, that election of remedies is inappropriate where the copyright of a PGS work embodied in an architectural work is different from the owner of the copyright of the architectural work. The dissent suggests that election is inappropriate because both of the copyright holders are limited to § 102(a)(5) protection. More plausibly, however, Congress meant that election is inappropriate because both copyright holders are limited to § 102(a)(8) protection, given the inappli*1224cability of the conceptual separability doctrine. Under this approach, all protecta-ble elements of an architectural work are protected exclusively under § 102(a)(8) so that there is no need to determine whether any part of the work may be considered a conceptually separable PGS work.4
Footnote 43 of the House Report lends support to the interpretation that § 102(a)(8) is the only source of protection for PGS works embodied in an architectural work. That footnote provides that “monumental, non-functional works of architecture,” previously protected as PGS works, are now to “be protected exclusively under Section 102(a)(8)” as architectural works. Id. at 6951 n. 43. Although the dissent interprets the import of this footnote differently, see op. at 1230-31, it certainly supports the proposition that Congress’ intent was that what was previously protectable as a sculptural work is now to be protected solely as an architectural work. The rejection of election of protection (ie., as either sculptural or architectural works) with respect to monumental works suggests that election of protection also is unavailable for functional PGS works embodied in an architectural work.5
Although the dissent condemns limiting copyright protection for PGS works embodied in an architectural work, its approach would limit the copyright protection afforded to architects. As the dissent reads the Act, architects who cannot prove that another reproduced his or her plans will no longer have protection against the reproduction of original design elements of their buildings if that building happens to contain a conceptually separable PGS whose copyright is owned by another. See op. at 1228-30. Moreover, the dissent’s approach would necessitate — in every case in which ornamental elements appear in an architectural work — ■a determination of whether any part of the work constitutes a conceptually separable sculptural work entitled to PGS protection, which is precisely the result Congress sought to avoid. See H.R. Rep. No. 101-735, at 6951 (“[T]he principal reason for not treating architectural works as pictorial, graphic, or sculptural works is to avoid entangling architectural works in this disagreement.”) (emphasis added).
In sum, Congress was not as clear as it could have been in enacting the AWCPA. Nonetheless, it is our task to construe the Act so as to effectuate congressional intent, as evidenced by the legislative history and common sense. See United States v. Sagg, 125 F.3d 1294, 1295 (9th Cir.1997) (“[O]ur duty is to find that interpretation which can most fairly be said to be imbedded in the statute, in the sense of being most harmonious ... with the general purpose that Congress manifested.”). In the circumstances of this case, the more reasoned interpretation of the AWCPA is that § 102(a)(8) now provides the sole source of copyright protection for functional PGS worlds embodied in an architectural work. This approach provides the same scope of protection to the architect and the artist, provides some certainty in the law, conserves judicial resources by eliminating the difficult-to-apply conceptual separability test, and more closely effectuates Congress’ intent to reject the conceptual separability test as a device for determining the scope of protection for architectural works. Most importantly, it gives meaning and substance to the pictorial representation exemption Congress enacted in § 120(a).
*1225For these reasons, I agree with the majority’s conclusion that Congress did not “mean[ ] to restrict pictorial copying to some, but not all of, a unitary architectural work,” op. at 1220, and, therefore, that § 120(a) applies.
. Section 120(a) provides:
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 representa-' tions 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) (1998).
. I emphasize the narrow and unique circumstances of this case: Here, the disputed PGS work is the functional equivalent of a building wall, serving the architectural purpose of extending the building line itself, as architecturally-mandated by the CRA. This is a far ciy from “the smallest painting on the front of a building," or “painting even a small work on a building,” to which the dissent compares the streetwall. See op. at 1232-33, 1233-34. The case the dissent worries about is not before us, even assuming that the details of the "small painting” could be discerned in the type of pictorial representation of a building at issue here. I note also that the free-standing elements of the Zanja Madre are not at issue in this case.
. Footnote 41 reads:
The Subcommittee was aware that certain works of authorship which may separately qualify for protection as [PGS] works may be permanently embodied in architectural works. Stained glass windows are one such example. Election is inappropriate in any case where the copyright owner of a[PGS] work embodied in an architectural work is different from the copyright owner of the architectural work.
Id. at 6950 n. 41.
. I recognize that this interpretation may limit a PGS work’s copyright protection because "separate registration may not be sought for multiple protectable elements in any given [architectural] structure.” 136 Cong. Rec. E260 (Feb. 7, 1990) (statement of Rep. Robert W. Kastenmeier). The effect of such a limitation, however, can be minimized through contract. For example, an artist whose work will be incorporated into a building may demand more compensation to give up his copyright or, alternatively, the architect and artist may register a single copyright as joint authors of the entire work.
. The district court read footnote 43 in essentially the same way. See Leicester, 47 U.S.P.Q.2d at 1508.