From the December 2001 issue of Entrepreneur

Imitation may be the sincerest form of flattery, but it may also be copyright infringement. And not just for written material, but also for artwork, music-and even screen displays.

Suppose you want to update the look of your Web site. You browse a bit and come across a site where the screen displays look just like what you want. So you ask your Web designer to make your pages look similar.

That could be asking for trouble, says Douglas Rogers, a Columbus, Ohio, attorney specializing in computer and intellectual property law. "It's easy to think, since the Web is so flexible, that copyright doesn't apply-but it does," Rogers says. You can get into just as much legal trouble for using photos or music that belong to someone else as you can for posting articles, if you haven't obtained permission to use them. The same goes for the look of a screen display. Everything on the Web is copyrighted by nature of the fact that it's been published on the Web, even if the little "©" is nowhere to be found.

Form and Function

The law can be tricky. Rogers notes that taking ideas is not a copyright violation. Copyright protects expression. "Sometimes the distinction between ideas and expression is not clear," he says.

One leading case in this area concerned a spreadsheet program produced by Borland International Inc. that had a menu tree nearly identical to that of the Lotus 1-2-3 application. Lotus sued, but the 1st U.S. Circuit Court of Appeals ruled that a menu command hierarchy was merely a "method of operation" and could not be copyrighted.

In an earlier case involving Lotus 1-2-3 and Paperback Software International's Excel program, a Massachusetts court pointed out that there was "a rather low limit . . . on the number of ways of making a computer screen resemble a spreadsheet." The court ruled, "If a previous programmer's idea can be expressed in only one or a limited number of ways, . . . then the expression, too, may be copied." In both these cases, courts found purely functional features were not protected by copyright.

"The more artistic and unique a design is, the more likely the design is protected by copyright," Rogers says. Indeed, in some recent cases, courts have ruled that features that are hardly artistic-such as particular four-digit command codes or drop-down menus-can be protected. The standard is altered in these cases so instead of the copycat work being "substantially similar," it has to be "virtually identical" before a court will rule that it infringes on copyright.

Rogers notes that a computer program that's quite different from another program-and therefore doesn't infringe on its copyright-can generate similar screen displays that do infringe. So make sure the appearance of any software you produce isn't copied from another program's displays.

Web Site Worries

The same goes if you're developing a Web site for your business. Copyright protects the appearance of screen displays, so be careful about what you borrow. You might tell your Web site designer you'd like the screens to have features you've seen elsewhere or a similar impact in their design, but don't ask for a site that looks pretty much the same.

Be especially careful to avoid having your site look like your competitor's because that can infringe on the competitor's "trade dress"-the look and feel of the company's product or its packaging. The laws protecting trade dress, a subset of trademark law, are designed to avoid any consumer confusion that can allow one company to ride on the coattails of another. "I have a case where a close competitor took something from my client's Web page just to confuse the customer," Rogers says. Don't do that.

A screen display can't be unique in every way because there are only so many ways of designing certain navigational features. "It's a judgment call," Rogers admits. "But it's a good idea to have the person developing the Web site assure you that it was developed independently."


Steven C. Bahls, Dean of Capital University Law School in Columbus, Ohio, teaches entrepreneurship law. Freelance writer Jane Easter Bahls specializes in business and legal topics.

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