TUCoPS :: Cyber Law :: copyrit2.txt

Copyrights & Computer Software Part 2

Copyright 1991 by S. Kitterman Jr. and the Las Vegas PC Users Group, 
316 Bridger Avenue, Suite 240; Las Vegas, NV 89101. All rights reserved.  
This file was originally printed in the November 1991 issue of The Bytes 
of Las Vegas, a publication of the Las Vegas PC Users Group, and may be 
reprinted only by nonprofit organizations.  
Please give proper credit to the author and The Bytes of Las Vegas.

Copyrights and Computer Software: Part II

by Sam Kitterman, Jr., LVPCUG
     [The purpose of these articles is to give general information
regarding copyrights and how they pertain to protection of
software.  It is not intended to constitute legal advice nor should
it be relief upon to address a particular situation since the tone
of these articles is general in nature.]
     In last month's column, I reviewed with you the basics of
copyright law, i.e., such things as the nature of copyright law,
where it comes from, and what it takes to obtain a copyright.  In
this month's issue, I will address the various types of "works" the
Copyright Law protects and the requirement of "originality" for
such works. 

          Types of "Works" Protectible Under Copyright
     First, what types of "works" will copyright law protect? 
Quite frankly, copyright law protects anything that meets the
definitional criteria, including but not limited to:
          (a)  Literary works - stories and novels as well as
          characters which are have been "fully realized" or
          depicted or depicted in those works.  
               On the other hand, please note that copyright law
          does NOT protect the titles of stories, novels, or other
          short phrases, such as slogans.  Much of that falls under
          trademark law, a subject I'll discuss in later columns.
          (b)  Musical Works (both lyrics and music).
          (c)  Dramatic Works - Although the Copyright Act does not
          define "dramatic works" since Congress believed everyone
          knows what the phrase means, courts have given some 
          clarification.  As one court stated, a drama is 
                    a work in which the narrative is told by
                    dialogue and action, and the characters 
                    go through a series of events which tell
                    a connected story.

          (d)  Pantomimes/Choreographic Works
          (e)  "Pictorial, Graphic and Sculptural Works"
          (f)  Two-Dimensional Works - This covers everything from 
          paintings, advertisements and fabric designs to
          (g)  Three-Dimensional Works - This area covers such
          items as sculptures, toys, dolls, jewelry and figurines.
          However, it must be noted that "functional" works, such
          as Halloween costumes may not be copyrighted concerning
          the nature of the mask or outfit created.  
          (h)  Motion Pictures and Video Games.
          (i)  Sound Recordings
          (j)  Specific Functional Works - Although functional
          items themselves are not copyrightable, certain works,
          having what is called "functional aspects", can be
          protected by copyright.  This includes such items as
          architectural plans, recipes, and business forms to a 
          certain degree.
          (k)  Computer Programs, including computer-generated
          Displays. Although the Copyright Office for some years
          would not allow registration of computer programs, that
          stance changed in 1964.  Since then the Copyright Office
          has allowed registration of computer programs although it
          has changed registration requirements from time to time.
               Strangely enough, computer programs are registered
          as literary works since such programs are composed of 
          textual materials.  Consequently, when one is seeking to
          register their program with the Copyright Office, they
          must use the TX form.

     As you can see, copyright law encompasses a broad range of
materials.  In the past two 1/2 years I have been specializing as
a copyright and trademark attorney, I have sought registrations for
clients dealing with everything from recipes for peanut butter pie
and "secret sauces" to comic book characters.
                 The Requirement of Originality
     As was also noted in last month's column, the Copyright Act
requires three elements for protection to be given.  One of those
elements is that the work be an "original work of authorship".
     What does this mean?   One of the acknowledged experts,
Professor Nimmer, defined "original" as follows:
               ...it is now clearly established...that the
               originality necessary to support a copyright
               merely calls for independent creation, not
               novelty [which is required for 
               patents]....Originality means only that the
               work owes its origin to the author, i.e., is
               independently created, and not copied from
               other works.
See 1 Nimmer The Law of Copyright  2.01[A] (1982), cited in 
Hubco Data Products corp. v. Management Assistance Inc., 219
U.S.P.Q. 450 (D. Idaho 1983).  

     Clearly, what copyrights protect is your original expression
of an idea, so long as you have not copied that "expression" from
someone else's work.  Indeed, even if your expression/"work" is
similar or identical to another's work, you can still seek
protection for your expression so long as it was "original".  For
example, if I had been born and raised on an isolated desert
island, had no access to the outside world, and then, wrote my own
Robinson Caruso, I would have as much right to have my novel
protected for it was my original creation, not copied from Defoe's
     Although "originality" had been subject to differing
interpretations by various courts, the United States Supreme Court
recently ruled on this very issue.  In Feist Publications Inc. v.
Rural Telephone Service Co., Inc., the High Court affirmed that
originality protects
          only...those components of a work that are 
          original to the author....those aspects of the work -
          termed 'expression' - that display the stamp of the
          author's originality.
and does not protect "facts or ideas" used by the author in his or
her "work".  Indeed, the Supreme Court held that although an 
author's compilation of "facts" may have involved hundreds of hours
of work, copyright law will protect only those portions of the work
"original to the author", such as the "selection and arrangement".
     In summary, originality is satisfied if you, the author of the
work, have infused the work with original elements, elements
bearing your "stamp".  
     Next month's article will deal with authorship of "works".       
Copyright 1991--S. Kitterman Jr.

[Sam Kitterman, a member of the Las Vegas PC Users Group is an attorney 
with the firm of Quirk, Tratos & Rothel; he specializes in issues 
related to computer software. This is the second of a series 
of articles Sam is writing for The Bytes of Las Vegas.
It was originally published in the November 1991 issue of The Bytes of Las 
Vegas, the official newsletter of the Las Vegas PC Users Group.]

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