Copyright 1991 by S. Kitterman Jr. and the Las Vegas PC Users Group, 316 Bridger Avenue, Suite 240; Las Vegas, NV 89101. All rights reserved. This file was originally printed in the November 1991 issue of The Bytes of Las Vegas, a publication of the Las Vegas PC Users Group, and may be reprinted only by nonprofit organizations. Please give proper credit to the author and The Bytes of Las Vegas. ------------------------------------------------------------------------------- Copyrights and Computer Software: Part II by Sam Kitterman, Jr., LVPCUG [The purpose of these articles is to give general information regarding copyrights and how they pertain to protection of software. It is not intended to constitute legal advice nor should it be relief upon to address a particular situation since the tone of these articles is general in nature.] In last month's column, I reviewed with you the basics of copyright law, i.e., such things as the nature of copyright law, where it comes from, and what it takes to obtain a copyright. In this month's issue, I will address the various types of "works" the Copyright Law protects and the requirement of "originality" for such works. Types of "Works" Protectible Under Copyright First, what types of "works" will copyright law protect? Quite frankly, copyright law protects anything that meets the definitional criteria, including but not limited to: (a) Literary works - stories and novels as well as characters which are have been "fully realized" or depicted or depicted in those works. On the other hand, please note that copyright law does NOT protect the titles of stories, novels, or other short phrases, such as slogans. Much of that falls under trademark law, a subject I'll discuss in later columns. (b) Musical Works (both lyrics and music). (c) Dramatic Works - Although the Copyright Act does not define "dramatic works" since Congress believed everyone knows what the phrase means, courts have given some clarification. As one court stated, a drama is a work in which the narrative is told by dialogue and action, and the characters go through a series of events which tell a connected story. (d) Pantomimes/Choreographic Works (e) "Pictorial, Graphic and Sculptural Works" (f) Two-Dimensional Works - This covers everything from paintings, advertisements and fabric designs to photographs. (g) Three-Dimensional Works - This area covers such items as sculptures, toys, dolls, jewelry and figurines. However, it must be noted that "functional" works, such as Halloween costumes may not be copyrighted concerning the nature of the mask or outfit created. (h) Motion Pictures and Video Games. (i) Sound Recordings (j) Specific Functional Works - Although functional items themselves are not copyrightable, certain works, having what is called "functional aspects", can be protected by copyright. This includes such items as architectural plans, recipes, and business forms to a certain degree. (k) Computer Programs, including computer-generated Displays. Although the Copyright Office for some years would not allow registration of computer programs, that stance changed in 1964. Since then the Copyright Office has allowed registration of computer programs although it has changed registration requirements from time to time. Strangely enough, computer programs are registered as literary works since such programs are composed of textual materials. Consequently, when one is seeking to register their program with the Copyright Office, they must use the TX form. As you can see, copyright law encompasses a broad range of materials. In the past two 1/2 years I have been specializing as a copyright and trademark attorney, I have sought registrations for clients dealing with everything from recipes for peanut butter pie and "secret sauces" to comic book characters. The Requirement of Originality As was also noted in last month's column, the Copyright Act requires three elements for protection to be given. One of those elements is that the work be an "original work of authorship". What does this mean? One of the acknowledged experts, Professor Nimmer, defined "original" as follows: ...it is now clearly established...that the originality necessary to support a copyright merely calls for independent creation, not novelty [which is required for patents]....Originality means only that the work owes its origin to the author, i.e., is independently created, and not copied from other works. See 1 Nimmer The Law of Copyright  2.01[A] (1982), cited in Hubco Data Products corp. v. Management Assistance Inc., 219 U.S.P.Q. 450 (D. Idaho 1983). Clearly, what copyrights protect is your original expression of an idea, so long as you have not copied that "expression" from someone else's work. Indeed, even if your expression/"work" is similar or identical to another's work, you can still seek protection for your expression so long as it was "original". For example, if I had been born and raised on an isolated desert island, had no access to the outside world, and then, wrote my own Robinson Caruso, I would have as much right to have my novel protected for it was my original creation, not copied from Defoe's work. Although "originality" had been subject to differing interpretations by various courts, the United States Supreme Court recently ruled on this very issue. In Feist Publications Inc. v. Rural Telephone Service Co., Inc., the High Court affirmed that originality protects only...those components of a work that are original to the author....those aspects of the work - termed 'expression' - that display the stamp of the author's originality. and does not protect "facts or ideas" used by the author in his or her "work". Indeed, the Supreme Court held that although an author's compilation of "facts" may have involved hundreds of hours of work, copyright law will protect only those portions of the work "original to the author", such as the "selection and arrangement". In summary, originality is satisfied if you, the author of the work, have infused the work with original elements, elements bearing your "stamp". Next month's article will deal with authorship of "works". ---------------------------------- Copyright 1991--S. Kitterman Jr. [Sam Kitterman, a member of the Las Vegas PC Users Group is an attorney with the firm of Quirk, Tratos & Rothel; he specializes in issues related to computer software. This is the second of a series of articles Sam is writing for The Bytes of Las Vegas. It was originally published in the November 1991 issue of The Bytes of Las Vegas, the official newsletter of the Las Vegas PC Users Group.]