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Think you can learn about good Web
design by stealing ideas from other
people's sites? Copyright law would
have to disagree
IMITATION MAY BE THE SINCEREST
FORM of flattery, but it may
also be copyright
infringement. And not just for
written material, but also for
artwork, music--and even
screen displays.
Suppose you want to update the
look of your Web site. You
browse a bit and come across a
site where the screen displays
look just like what you want.
So you ask your Web designer
to make your pages look
similar.
That could be asking for
trouble, says Douglas Rogers,
a Columbus, Ohio, attorney
specializing in computer and
intellectual property law.
"It's easy to think, since the
Web is so flexible, that
copyright doesn't apply--but
it does," Rogers says. You can
get into just as much legal
trouble for using photos or
music that belong to someone
else as you can for posting
articles, if you haven't
obtained permission to use
them. The same goes for the
look of a screen display.
Everything on the Web is
copyrighted by nature of the
fact that it's been published
on the Web, even if the little
"[c]" is nowhere to be found.
The law can be tricky. Rogers
notes that taking ideas is not
a copyright violation.
Copyright protects expression.
"Sometimes the distinction
between ideas and expression
is not clear," he says.
One leading case in this area
concerned a spreadsheet
program produced by Borland
International Inc. that had a
menu tree nearly identical to
that of the Lotus 1-2-3
application. Lotus sued, but
theist U.S. Circuit Court of
Appeals ruled that a menu
command hierarchy was merely a
"method of operation" and
could not be copyrighted.
In an earlier case involving
Lotus 1-2-3 and Paperback
Software International's Excel
program, a Massachusetts court
pointed out that there was "a
rather low limit... on the
number of ways of making a
computer screen resemble a
spreadsheet." The court ruled,
"If a previous programmer's
idea can be expressed in only
one or a limited number of
ways, ... then the expression,
too, may be copied." In both
these cases, courts found
purely functional features
were not protected by
copyright.
"The more artistic and unique
a design is, the more likely
the design is protected by
copyright," Rogers says.
Indeed, in some recent cases,
courts have ruled that
features that are hardly
artistic--such as particular
four-digit command codes or
drop-down menus--can be
protected. The standard is
altered in these cases so
instead of the copycat work
being "substantially similar,"
it has to be "virtually
identical" before a court will
rule that it infringes on
copyright.
Rogers notes that a computer
program that's quite different
from another program--and
therefore doesn't infringe on
its copyright--can generate
similar screen displays that
do infringe. So make sure the
appearance of any software you
produce isn't copied from
another program's displays.
Web Site Worries
The same goes if you're
developing a Web site for your
business. Copyright protects
the appearance of screen
displays, so be careful about
what you borrow. You might
tell your Web site designer
you'd like the screens to have
features you've seen elsewhere
or a similar impact in their
design, but don't ask for a
site that looks pretty much
the same.
Be especially careful to avoid
having your site look like
your competitor's because that
can infringe on the
competitor's "trade
dress"--the look and feel of
the company's product or its
packaging. The laws protecting
trade dress, a subset of
trademark law, are designed to
avoid any consumer confusion
that can allow one company to
ride on the coattails of
another. "I have a case where
a close competitor took
something from my client's Web
page just to confuse the
customer," Rogers says. Don't
do that.
A screen display can't be
unique in every way because
there are only so many ways of
designing certain navigational
features. "It's a judgment
call," Rogers admits. "But
it's a good idea to have the
person developing the Web site
assure you that it was
developed independently." |
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