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.
Content Continues Below
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.
Contact Source