

Is "look and feel" copyrightable? - raganwald
http://blog.pastie.org/2008/05/copyright---des.html

======
swombat
_We're often victims of design piracy. Roughly once a week someone emails us
with an anonymous tip that someone has ripped off our "UI look and feel" and
is using it for their own site or their own app. It's amazing what people and
businesses think they can get away with._ -Jason

I have all due respect for Jason Fried, and enjoy many of his posts on SvN,
twitter, and other modes of communication, but only a royal dickhead could
make a statement like that.

It's amazing what kind of brain-dead statements copyright fear-mongers can get
away with.

I warmly urge all who are considering copying the 37S look-and-feel to not
hesitate to use it identically, if it is appropriate to your application.

------
bd
This is silly. Imagine a world where this would be enforced.

There is no way to know in advance that your look and feel doesn't
accidentally resemble some of the existing millions of websites.

This holds even more for 37signals type of elegant/functional style as opposed
to something more artsy/ornamental.

You cut away cruft till there is left just a necessary minimum. Surprise
surprise, if many people follow the same process, they will get similar
results.

In nature, this is called convergent/parallel evolution. If there is a similar
environments/evolutionary pressures, the same features will evolve multiple
times.

<http://en.wikipedia.org/wiki/Convergent_Evolution>

<http://en.wikipedia.org/wiki/Parallel_evolution>

~~~
micks56
_This is silly. Imagine a world where this would be enforced.

There is no way to know in advance that your look and feel doesn't
accidentally resemble some of the existing millions of websites._

I agree with you and so does the law.

The first required element of proof in any copyright claim is that the alleged
infringer had access to the plaintiff's copyrighted work. Basically if you
never saw the copyrighted work you are not infringing if your work is
substantially similar or appears to be a derivative work.

For another reason why copyright probably (I say probably because you can
never predict how a jury will decide) does not apply is the merger doctrine.
That is when an idea and the expression of the idea become one. That is not
copyrightable.

For the UI to have a trademark, and it could, the 37S UI would have to cause a
person to recognize that the UI is by 37S. This will be very difficult for
them to achieve. The Nike swoosh is trademarked because it immediately causes
a person to know that it is by Nike. Same with the Reebok symbol. A person
knowing who designed a UI on a web app by its colors is a stretch.

Also, functional elements cannot be trademarked. So an excellent screen layout
that improves usability cannot be part of a trademark. But the colors and
artistic arrangement could be.

Lastly, yes, you do need to register your copyright to sue. No, mailing
yourself a copy does not work at all. Do not do it. Read 17 U.S.C §412 for the
reason.
[http://www.law.cornell.edu/uscode/uscode17/usc_sec_17_000005...](http://www.law.cornell.edu/uscode/uscode17/usc_sec_17_00000504
----000-.html)

Then go read §504 and §505 for more reasons.

~~~
olefoo
Actually the term you are looking for is "Trade Dress" and it can include
things like color (UPS Brown), shape (Coca Cola bottle) and pattern.

The tests applied to meet the standard are distinctiveness, indication of
origin and non-functionality. So for someone to claim elements of a design as
protected trade dress, it cannot be a functional element of the design, and it
must be a distinctive indicator of the origin of the product.

It's similar but not the same as trademark.

~~~
micks56
You are right.

I didn't attempt to distinguish between trade dress and trade mark. It is
difficult for a person studying IP to understand. I thought it would only
confuse things.

But yes, you are right. And you explained it better than I would have.

------
JimmyL
I don't think any article on the issue of "look and feel" is complete without
coverage of the two most significant precedents (both for what they say and
what they don't say about it), Apple Computer v. Microsoft and Lotus v.
Borland.

Lotus said (broadly) that public interfaces like menus weren't copyrightable
in and of themselves, but that the implementation of those menus may be
copyrightable. Additionally, the non-copyrightable menus may contain
individual elements that could be subject to copyright.

In this particular case, I think it's just something that 37signals' lawyers
had them put in to give them future leverage in negotiation if someone does
release something major that significantly uses their "look and feel" - in my
experience the precedents aren't nearly clear enough to make a look and feel
suit an open-and-closed cased.

As ever, you should consult a local IP lawyer if this really matters to you,
and not listen to what a bunch of people on the internet have to say.

~~~
jgfoot
Yeah, it's a weird blog post -- I don't know whether the author is a lawyer,
but this isn't how most lawyers would go about writing a blog post about
whether "look and feel" is copyrighted. The guy treats the Copyright Office
web site as gospel, never mentions key Supreme Court cases, and only barely
looks at the statutes. Yet, his ultimate conclusion is pretty much correct.

But, this guy has given me courage. If programmers are comfortable writing
about law, maybe this lawyer should start writing about programming.

------
elecengin
Another case that is applicable is Williams Elec., Inc. v. Bally Mfg. (No. 82
C 2167)

In this case, the copyrighted design of a pinball machine playfield was copied
almost exactly. The court did not rule there was infringement due to the fact
that all elements that were claiming copyright protection were key to the
utility of the product, and therefore could not be copyrighted.

In this situation, the look and feel can be claimed to be inextricably linked
to the function and utility of the site by the same argument.

------
fallentimes
This entire reading "looks and feels" so subjective. How the heck is someone
supposed to know what to do if quotes are needed around words to describe it?

Copyright law makes my head spin.

------
akronim
Isn't that just something 37Signal's lawyer would have made them put in? It
doesn't cost them anything to have those words there and might dissuade a few
people from copying their design.

------
vlad
Regarding possible exemptions to look and feel to computer programs in the
U.S. Code, I'm not sure why the author cares to argue this point to minute
detail when he's not a lawyer, nor being sued by 37signals; he also did not
say he researched to see how real lawyers and judges interpreted related court
cases in recent history, which would give more credibility of the
applicability of copyright laws and exceptions to them than just his own
personal analysis of the Copyright Office's frequently asked questions page.

I wonder what happens if you create your own interpretation of a mouse that
clearly resembles the Disney character. Or, a realistic 3D model of Mickey
Mouse. Since it's not your character, do you own the work? Is it an illegal
work? Besides not allowing the author to display it, can Disney also get
rights to the rendering as well as source of the model? Is work that violates
copyright is automatically owned by the copyright holder? If the answer is no,
then what happens to the work? If Disney can't use it, who can? Nobody? The
author cannot because it clearly resembles a Disney character, and Disney
cannot because they did not create it. The author must retain the copyright,
then, but cannot display it or transfer it, except that he can probably sell
it to Disney if both parties agree.

------
cschneid
There was a case where a law dictionary effectively claimed copyright over the
page numbers.

Since the law itself wasn't their property (and was actually public domain
afaik), and there wasn't any other original content in the book, they didn't
have a claim on any content in their book, so instead they claimed copyright
on the page numbers themselves.

From what I can tell it was upheld too when they were sued. Page numbers are a
form of layout in my eyes, certainly without artistic merit.

[http://lists.essential.org/1995/info-policy-
notes/msg00019.h...](http://lists.essential.org/1995/info-policy-
notes/msg00019.html)

I don't think this is nearly as clear cut as the article wants it to be.

~~~
JimmyL
A similar case that comes up every few years has to do with copyrighting the
phone book. The publisher contends that while the information contained within
it is indeed not copyrightable, the arrangement and ordering of it is, and so
you can't just recopy it and republish it for free. The wannabe publisher says
that it's free information in no meaningful order, so they can republish it
all they want. And then they go to court, and whatever happens happens...

Another example (and similar to the one you mention) is Carl Malamud's
public.resource.org - he's taking WestLaw's court records, removing the
copyrighted bits, and publishing them himself online. The problem then becomes
how to cite them, since WestLaw's numbering system is somewhat of a de factor
standard.

All-in, you're quite right - this is nowhere near as clear as the article
thinks it is, and it's certainly not a domain that I'd rely on a non-lawyer's
opinion for.

~~~
cschneid
And then there's the wrinkle of trademarks. Look and Feel is certainly in the
realm of trademarks, and I'm sure that 37 signals has their designs
trademarked, and their logos, and "getting real", and everything else they've
ever created.

Intellectual property laws are interesting. It's a giant game, moreso than
crime or other torts, since everything is made up with little basis in
physical reality. I'm not opposed to the idea, but it's fun seeing the law
operate in a self-created vacuum.

------
spc476
We'll probably find out more about this stuff in the coming year as Popeye
falls into the British public domain (
[http://entertainment.timesonline.co.uk/tol/arts_and_entertai...](http://entertainment.timesonline.co.uk/tol/arts_and_entertainment/tv_and_radio/kids_tv/article5415854.ece)
). Pass the popcorn, this should be good.

------
tlrobinson
_Has 37signals copyrighted any of their products?

Other than their book it appears they have no copyright registrations filed._

So? You don't need to register copyrights in order for something to be
copyrighted, it just proves you're the owner, which could help if you need to
take legal action.

~~~
amobilebiz
True, but you do need to register your copyright if you want to be able to
take legal action in U.S. courts. Just stating the copyright does not provide
you with protection in the court system's eyes.

~~~
timcederman
This doesn't sound right - citation?

~~~
amobilebiz
<http://www.copyright.gov/circs/circ1.html#cr>

------
ig1
[http://www.google.co.uk/search?hl=en&q=Trade+Dress+%22lo...](http://www.google.co.uk/search?hl=en&q=Trade+Dress+%22look+and+feel)

------
slavingia
So says T-Mobile. ;)

([http://www.engadget.com/2007/11/09/know-your-rights-does-
t-m...](http://www.engadget.com/2007/11/09/know-your-rights-does-t-mobile-
really-own-magenta/) \+ [http://www.colourlovers.com/blog/2007/11/04/beware-t-
mobile-...](http://www.colourlovers.com/blog/2007/11/04/beware-t-mobile-owns-
the-color-magenta/) for more info)

