COPYRIGHT PRIMER

Copyrights protect the particular expression of an idea.  Ideas can be expressed in many different ways and therefore a case for infringement for something other than an exact copy can end up being disputed for minor variations or subjective standards.  A case of infringement requires primarily two steps:  1) a showing of substantial similarity; and 2) access to the original work.  Access to the original work can sometimes be difficult to prove.  In the digital world, many authors use digital watermarks that lay hidden to the ordinary observer but can be seen by more tech savvy folks when trying to prove access.  This can be effective against the blatant copiers.  The showing of substantial similarity between the original work and the alleged copy can be more challenging and subjective.  For example, an author is allowed to describe and write about their own take on a historical event.  Well known challenges occurred over Dan Brown’s Da Vinci Code, where Michael Beignet and Richard Leigh alleged that Dan Brown infringed on the copyright of their non-fiction work Holy Blood, Holy Grail.  Beignet and Leigh alleged that Brown told his story in a similar manner.  This case was dismissed since textual copying or non-textual copying of a substantial part of Holy Blood, Holy Grail was not found.  In another instance, Barbara Chase-Riboud settled with Steven Spielberg and Dreamworks SKG dropping her plagiarism suit against the studio.  A preliminary injunction was denied.  Chase-Riboud did not own exclusivity to all the verbal depictions of the historical event that occurred as an 1839 revolt by Africans on a Spanish slave ship.  The actual historical character names and actions they performed according to history are not subject of copyright protection, only the particular expression in a depiction of their stories as expressed by each author can be protected.   In this regard, fiction is easier to protect under copyright than non-fiction.

Apple sued Microsoft for allegedly infringing the “look and feel” of their computer operating system when Microsoft Windows first came out.  The court found that many features of the operating system was un-protectible under copyright.  For example, items considered “scenes-a-faire” such as a garbage can icon used for removal of files was found un-protectible.  Also, under the merger doctrine, courts will not protect a copyrighted work if the idea underlying the work can be expressed in only one way or a very few limited ways.  In this regard, the work’s idea and the expression merge and it would not be fair to provide a monopoly to the underlying idea.  One can maybe categorized a pull-down menu in this way.   In other instances, Microsoft showed that Apple was not the originator or author of some of the concepts or expressions of those concepts (more likely, Xerox PARC).