141 lines
7.5 KiB
Plaintext
141 lines
7.5 KiB
Plaintext
Copyright 1991 by S. Kitterman Jr. and the Las Vegas PC Users Group,
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316 Bridger Avenue, Suite 240; Las Vegas, NV 89101. All rights reserved.
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This file was originally printed in the November 1991 issue of The Bytes
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of Las Vegas, a publication of the Las Vegas PC Users Group, and may be
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reprinted only by nonprofit organizations.
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Please give proper credit to the author and The Bytes of Las Vegas.
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-------------------------------------------------------------------------------
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Copyrights and Computer Software: Part II
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by Sam Kitterman, Jr., LVPCUG
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[The purpose of these articles is to give general information
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regarding copyrights and how they pertain to protection of
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software. It is not intended to constitute legal advice nor should
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it be relief upon to address a particular situation since the tone
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of these articles is general in nature.]
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In last month's column, I reviewed with you the basics of
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copyright law, i.e., such things as the nature of copyright law,
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where it comes from, and what it takes to obtain a copyright. In
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this month's issue, I will address the various types of "works" the
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Copyright Law protects and the requirement of "originality" for
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such works.
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Types of "Works" Protectible Under Copyright
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First, what types of "works" will copyright law protect?
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Quite frankly, copyright law protects anything that meets the
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definitional criteria, including but not limited to:
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(a) Literary works - stories and novels as well as
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characters which are have been "fully realized" or
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depicted or depicted in those works.
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On the other hand, please note that copyright law
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does NOT protect the titles of stories, novels, or other
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short phrases, such as slogans. Much of that falls under
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trademark law, a subject I'll discuss in later columns.
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(b) Musical Works (both lyrics and music).
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(c) Dramatic Works - Although the Copyright Act does not
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define "dramatic works" since Congress believed everyone
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knows what the phrase means, courts have given some
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clarification. As one court stated, a drama is
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a work in which the narrative is told by
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dialogue and action, and the characters
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go through a series of events which tell
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a connected story.
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(d) Pantomimes/Choreographic Works
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(e) "Pictorial, Graphic and Sculptural Works"
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(f) Two-Dimensional Works - This covers everything from
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paintings, advertisements and fabric designs to
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photographs.
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(g) Three-Dimensional Works - This area covers such
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items as sculptures, toys, dolls, jewelry and figurines.
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However, it must be noted that "functional" works, such
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as Halloween costumes may not be copyrighted concerning
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the nature of the mask or outfit created.
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(h) Motion Pictures and Video Games.
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(i) Sound Recordings
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(j) Specific Functional Works - Although functional
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items themselves are not copyrightable, certain works,
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having what is called "functional aspects", can be
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protected by copyright. This includes such items as
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architectural plans, recipes, and business forms to a
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certain degree.
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(k) Computer Programs, including computer-generated
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Displays. Although the Copyright Office for some years
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would not allow registration of computer programs, that
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stance changed in 1964. Since then the Copyright Office
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has allowed registration of computer programs although it
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has changed registration requirements from time to time.
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Strangely enough, computer programs are registered
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as literary works since such programs are composed of
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textual materials. Consequently, when one is seeking to
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register their program with the Copyright Office, they
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must use the TX form.
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As you can see, copyright law encompasses a broad range of
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materials. In the past two 1/2 years I have been specializing as
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a copyright and trademark attorney, I have sought registrations for
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clients dealing with everything from recipes for peanut butter pie
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and "secret sauces" to comic book characters.
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The Requirement of Originality
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As was also noted in last month's column, the Copyright Act
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requires three elements for protection to be given. One of those
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elements is that the work be an "original work of authorship".
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What does this mean? One of the acknowledged experts,
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Professor Nimmer, defined "original" as follows:
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...it is now clearly established...that the
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originality necessary to support a copyright
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merely calls for independent creation, not
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novelty [which is required for
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patents]....Originality means only that the
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work owes its origin to the author, i.e., is
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independently created, and not copied from
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other works.
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See 1 Nimmer The Law of Copyright 2.01[A] (1982), cited in
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Hubco Data Products corp. v. Management Assistance Inc., 219
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U.S.P.Q. 450 (D. Idaho 1983).
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Clearly, what copyrights protect is your original expression
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of an idea, so long as you have not copied that "expression" from
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someone else's work. Indeed, even if your expression/"work" is
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similar or identical to another's work, you can still seek
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protection for your expression so long as it was "original". For
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example, if I had been born and raised on an isolated desert
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island, had no access to the outside world, and then, wrote my own
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Robinson Caruso, I would have as much right to have my novel
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protected for it was my original creation, not copied from Defoe's
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work.
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Although "originality" had been subject to differing
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interpretations by various courts, the United States Supreme Court
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recently ruled on this very issue. In Feist Publications Inc. v.
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Rural Telephone Service Co., Inc., the High Court affirmed that
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originality protects
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only...those components of a work that are
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original to the author....those aspects of the work -
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termed 'expression' - that display the stamp of the
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author's originality.
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and does not protect "facts or ideas" used by the author in his or
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her "work". Indeed, the Supreme Court held that although an
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author's compilation of "facts" may have involved hundreds of hours
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of work, copyright law will protect only those portions of the work
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"original to the author", such as the "selection and arrangement".
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In summary, originality is satisfied if you, the author of the
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work, have infused the work with original elements, elements
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bearing your "stamp".
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Next month's article will deal with authorship of "works".
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----------------------------------
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Copyright 1991--S. Kitterman Jr.
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[Sam Kitterman, a member of the Las Vegas PC Users Group is an attorney
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with the firm of Quirk, Tratos & Rothel; he specializes in issues
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related to computer software. This is the second of a series
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of articles Sam is writing for The Bytes of Las Vegas.
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It was originally published in the November 1991 issue of The Bytes of Las
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Vegas, the official newsletter of the Las Vegas PC Users Group.]
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