Is "look and feel" copyrightable? - Design Piracy Series

When we discussed patents last time we went straight to the source. We'll do that again for copyright law. Stay with me though, this is going to be a bit long to cover everything.

From the U.S. Copyright Office FAQ:

What is copyright?

Copyright is a form of protection grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression. Copyright covers both published and unpublished works.

What does copyright protect?

Copyright, a form of intellectual property law, protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed.

If we delve a little deeper into Copyright Basics we find a disclaimer of sorts and another list of protected items:

These categories should be viewed broadly. For example, computer programs and most "œcompilations"€ may be registered as "literary works"...

• literary works
• musical works, including any accompanying words
• dramatic works, including any accompanying music
• pantomimes and choreographic works
• pictorial, graphic, and sculptural works
• motion pictures and other audiovisual works
• sound recordings
• architectural works

The 37signals position

Before we delve any deeper lets have a quick refresher on what Jason has said on the matter (from the 37s blog):

We'€™re often victims of design piracy. Roughly once a week someone emails us with an anonymous tip that someone has ripped off our "€œUI 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.

From the Highrise Terms of Service:

The look and feel of the Service is copyright©1999-2007 37signals, LLC. All rights reserved. You may not duplicate, copy, or reuse any portion of the HTML/CSS, Javascript, or visual design elements or concepts without express written permission from 37signals.

Update: Yes, I had originally quoted Jason here from an e-mail exchange with myself. A few people pointed out that could be consider bad form. So I am replacing that quote with the above content from the Highrise Terms of Service. I only quoted his e-mail to help clarify the 37s position on copyright but I think the Highrise ToS makes it abundantly clear.

It seems the assertion is literally that their overall layout, design, "look and feel", etc. is copyright 37signals. But are designs really afforded the same protection as words?

On what type of work is Jason claiming copyright protection?

Since he doesn't really say we'll skim the lists we looked at earlier to see if we can find any copyrightable items that might support Jason's claims.

I see "pictorial, graphic, and sculptural works", "literary works" (the disclaimer says this can be applied to computer programs and "computer programs" are also explicitly listed in the FAQ). A little more digging provides us with a longer list of literary works including such things as "online works" and "automated databases".

Perhaps a 37signals design could be considered a "pictoral or graphic" work so lets check out the Visual Art Works page as well:

Make sure your work is a visual arts work. Visual arts are pictorial, graphic, or sculptural works, including 2-dimensional and 3-dimensional works of fine, graphic, and applied art.

I don't see a lot of room there for web app "look and feel" but thankfully another detailed list of visual arts examples has been provided for us.

You can read thru it yourself, but the only related thing I see is "computer artwork" which is listed under "Holograms, computer and laser artwork". So that leaves us with the following to investigate further:

• computer artwork
• online works
• computer programs

We'll examine all three of the above one at a time.

Computer Artwork

The definition of artwork (as provided by answers.com):

1. Work in the graphic or plastic arts, especially small handmade decorative or artistic objects.
2. An illustrative and decorative element, such as a line drawing or photograph, used in a printed work, such as a book.

To me it seems that "computer artwork" as a term would be definition #2 plus "created using a computer". I don't think a login screen can be construed to be artwork; or a milestones screen, or a file upload form.

Even if I'm mistaken this wouldn't be a copyright on "design" or "look and feel"... but rather a copyright on the overview page, a copyright on the milestones page, a copyright on the file upload form, etc... sounds a bit ridiculous and doesn't sound like what Jason is asserting.

We'll drop this now as we'll find something later that will make it clear "artwork" isn't meant to be understood in this context.

Online Works

The U.S. Copyright Office regarding Online Works:

For all online works other than computer programs and databases, the registration extends only to the copyrightable content of the work as received in the Copyright Office and identified as the subject of the claim.

This seems specifically to exclude web apps since a web app is an online work that is both a computer program and a database.

Computer Programs

We're also given a specific definition of a computer program:

A “computer program” is a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.

Copyright protection extends to all the copyrightable expression embodied in the computer program. Copyright protection is not available for ideas, program logic, algorithms, systems, methods, concepts, or layouts.

Interesting... layouts can't be copyrighted? Like sheet of paper layouts?

But it's about to get more complicated when we find the term Screen Displays...

The Copyright Office has consistently believed that a single registration is sufficient to protect the copyright in a computer program and related screen displays, including videogames, without a separate registration for the screen displays or a specific reference to them on the application for the computer program.

Notice it's "copyright in... screen displays", not copyright of screen displays. Let's keep reading.

This description will cover any copyrightable authorship contained in the computer program and screen displays, regardless of whether identifying material for the screen is deposited.

Now notice that it's not the screen displays themselves that are copyright but rather any copyrightable material contained there-in. In 37signals case this might include body copy of sufficient length, their tour videos, etc... In the case of a video game obviously it might include movies, computer artwork, etc. Obviously as stated above 37signals "layout" is not copyrightable.

The registration will extend to any related copyrightable screens, regardless of whether identifying material for the screens is deposited.

Here we learn that there exist copyrightable as well as non-copyrightable screens. What might a non-copyrightable screen be? Easy, a screen without any copyrightable content:

Where the screens are essentially not copyrightable (e.g., de minimis menu screens, blank forms, or the like), the application should not refer to screens.

For example the following Highrise "Add a new person" screen contains no copyrightable content that I can see (other than potentially the two longer phrases). It's the perfect example case of the above... it contains only navigation (de minimis menus) and a blank form.

It's also possible to separately register screens displays (in addition to registering the software itself) but note the examples given:

In such a case, the application should describe the nature of authorship appropriately, for example, “text of screen displays” or “audiovisual material.” Identifying material for the screens containing copyrightable authorship must be deposited.

Again we have the concept of a screen having copyrightable content (such as "text of screen displays" and "audiovisual material") but yet not being copyrightable content in its own right.

Why you can't copyright "look and feel"

I think it should be clear at this point that copyright explicitly does not cover layout... and it definitely doesn't cover "feel"... you can patent how something works and functions but not copyright it. I think the above material regarding screen displays makes it clear that "look" is out as well. Screens can be copyrighted but only in so far as they contain actual elements that are themselves copyrightable. Not the screen itself.

If you start to think of "look and feel" as a design methodology or a collection of design concepts you'll also start to see why it is not copyrightable (you can't copyright methods, concepts, or ideas).

The following I found interesting as well (although it makes perfect sense):

Registration of a computer program used in an online work does not automatically cover any visible or audible copyrightable elements that are generated by the code. To register those portions of an online work, the entire copyrightable content must be deposited.

I'm pretty sure this just means that MS Word's copyright doesn't extend to my .DOC biography, Garage Band's copyright doesn't include my new hit single and Backpack's copyright doesn't include the random thoughts and musings I keep there. The content created with software is it's own entity and would have to be protected as such.

Copyright and 37signals

Copyrights, like patents, also seem to be publicly searchable. Of course it doesn't appear strictly necessary to register your copyright to enjoy the protection of copyright law. However, you will need to register if you plan to bring a lawsuit against someone for infringement. But it does bring us to an interesting question: Has 37signals copyrighted any of their products?

Other than their book it appears they have no copyright registrations filed. If that link doesn't work (it may require a session) then you can either take my word for it or perform the search yourself if so inclined. I found the book under "37 signals" (with a space).

This of course leaves me really curious exactly what the "1% of the time it requires legal intervention" they mention in their blog post refers to exactly. Maybe just a scary letter from their legal team?

In Closing

Let's have one last quick glance at that Highrise ToS quote:

The look and feel of the Service is copyright©1999-2007 37signals, LLC. All rights reserved. You may not duplicate, copy, or reuse any portion of the HTML/CSS, Javascript, or visual design elements or concepts without express written permission from 37signals.

I can't find anything that even hints that "look and feel" is protected under U.S. Copyright Law. The law is also very clear that you can't copyright "concepts".

I think good UI design should be something we all freely share. I don't want to use a poorly designed UI anymore than the next guy. Yes, I have asked people in the past not to copy my HTML or CSS. At the same time though I suggested they feel free to come up with similar designs.

Why is it that uniformity of the UI is embraced on other platforms (think Gnome HIG, Apple HIG, Microsoft User Experience Guidelines, etc) but there is this vibe that every application on the web should look and feel noticeably different than every other application? It all seems a bit ridiculous to me.

Next up we'll touch on morality, ethics, and my thoughts on stealing. Stay tuned...

Comments

[roger pack]

I think you're right. You can patent a 'look and feel' but not copyright it, AFAIK.

[Josh Goebel]

I'm pretty sure I'm right after all the reading I've done; unless I missed something big. I did quite a bit of reading before writing all the articles on the legal stuff.

[ctran]

Are you a lawyer? If not, please don't give out legal advice :-)
If you are, I'll start come here for that.

[Josh Goebel]

I've read the relevant sections of U.S. Copyright Office's website... I've studied the issue. No, I'm not a lawyer but this isn't rocket science. Sure if you plan to actually pick a legal fight with a company over this type of thing you are going to want a lawyer not just my blog posts in hand... I wouldn't presume to tell you otherwise.

I simply hope my blog posts will prove educational and encourage smaller companies to stand up for their rights instead of assuming that just because a larger company says something is true that it actually is. I've learned a lot myself since I started this series. I hope others have as well.

I'm presenting things as I see them after careful study of the issues. I think my analysis is logical and well reasoned and I would gladly welcome an equally logical and well reasoned response from anyone of the opposite view point.

[Fred]

Unfortunately, "copyright in screen displays" does mean the screen display itself, not the text being displayed. This doesn't destroy your argument, but it weakens it somewhat.

[Josh Goebel]

Fred, you're one of the few people I've spoken with who holds that opinion after reading everything (did you read everything?)... based on the full document and many excerpts I cited what leads you to hold that opinion? And how do you explain the Copyright Office's explanation of screens that "are not copyrightable"...

While I would hesitate to call any of the actual material of the Copyright Office clear and concise after reading and brain parsing it's pretty clear to me that it's the copyrightable content, not the design or layout that is being referred to.