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| Patent Group | |
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| Computer Software and Intellectual Property Law | ||
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Computer Software and Copyright8. Can the Look and Feel of a Computer Program Be Copyrighted?No one really knows. The Copyright Office has stated that a registered copyright in a computer program extends to screen displays resulting from the computer program. This statement may appear somewhat contradictory to what has already been stated about what can and cannot be protected. One can argue that the "look and feel" of a computer program is a manifestation of the goal and purpose of an idea, not of the means of expressing that idea. In other words, two programmers may have the same idea which can manifest itself via identical screen displays. However, each programmer may use a completely different means, such as a different language with different routines on a VMS box rather than on a UNIX box, of expressing that manifestation. Thus each programmer should be able to assert his or her own copyright on the computer program without having a right to copyright the "look and feel" of the program.A logical analysis would ask a seemingly simple question. If there is only one way to express the "look and feel" of a given program, then it is an idea and hence not copyrightable. If there are many ways to express the "look and feel" then each different way can be copyright protected. In either case, this logic suggests that the "look and feel" itself cannot be copyright protected. However, courts do not necessarily restrict themselves to comparing the means of an expression, the source code. Sometimes they compare the ends, the "look and feel." To put it bluntly, courts have been all over the place on this issue. One court may hold that if one screen looks substantially similar to the other, then there is copyright infringement, thereby holding that the "look and feel" can be copyright protected. Another court may look only at the source code and hold that no infringement exists and that the "look and feel" cannot be protected. Other courts may find no infringement and still hold that the "look and feel" can be protected. Some courts will evaluate both the source code and "look and feel" as separate infringement cases. In other words, there is still no definitive answer to this question. One reason for this apparent inconsistency and contradiction is that most judges lack the technical knowledge in computer science to explore in detail the workings of a computer program. It is both easier and faster to simply compare screen displays or program outputs when deciding infringement cases than to do a line by line source code comparison. Another reason is that much of computer law falls in a wide expanse of uncertainty that has been difficult for courts to adapt into existing case law. Improvement will only take time. The take-home message for you as a programmer is this: Never assume
that you can protect the "look and feel" of your program from copyright
infringement and never assume that you can't. If you want to do your best
to protect your screen displays, then you may want to federally register
your program and screen displays as one unit with the
U.S.
Copyright Office. Refer to
§11 of this
Guide for details on federal registration.
* Written by John E. Wehrli, formerly of the Patent Department, Lawrence Berkeley National Laboratory. Available as LBL Report No. 38995. |
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