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Is "look and feel" copyrightable? (pastie.org)
34 points by raganwald on Jan 2, 2009 | hide | past | favorite | 22 comments

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.

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.



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...

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

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.

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.

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.

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.

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.

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.

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.

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.

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.


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

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.

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.

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... ). Pass the popcorn, this should be good.

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.

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.

I've heard of people mailing themselves a copy of their work, and leaving the enveloped sealed. Presumably this would also be enough proof?

edit: here's a description of the concept: http://www.copyrightauthority.com/poor-mans-copyright/ ...doesn't sound like a very good solution

This doesn't sound right - citation?

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