The big bad wolf to the . . . rescue?

The big bad wolf to the . . . rescue?

If you work in technology, the big bad fair use wolf can be your best friend. Read below to find out why.

A few days ago, the U.S. Supreme court denied Google’s appeal from a decision by the United States Court of Appeals for the Federal Circuit which found that source code — written instructions that run computer software — can be protected by copyright law. In so doing, the nation’s highest court left in tact a ruling by the Federal Circuit which found Google could have infringed the copyright to Oracle’s software programming platform.

To the extent Oracle’s code is original and non-functional, then it should find protection against wolves inside a nice cozy copyright house during the cold winter. That’s because this type of source code is akin to the original combinations of words that authors use as inputs into their own hardware — books, screenplays, or plays. Because these words are original expressions of perhaps unoriginal ideas, they are copyrightable subject matter. No less should be true about original non-functional source code.

Nonetheless, the copyright house isn’t impervious to the elements outside. If you copy the idea behind a copyrighted work, then you have no liability because ideas aren’t protected by copyright law — but functional ideas can be potentially patented. That’s why, when copyrighted expression is so inextricably linked with a functional idea, many federal courts will deny copyright protection to the expression, especially in the case of functional source code. Small tweaks in code inspired by not all that original — but original enough for copyright protection — source code can keep you away from the infringement line. In such a crowded market, there are only so many ways to express a functional idea, which is why courts are remiss about extending the scope of copyright protection for any one particular expression. To do otherwise would hurt innovation. No less is true in other expressive endeavors. The scope of copyright protecting less original works — such as a “me too” drip style painting inspired by the works of Jackson Pollock — is smaller than that for pioneering ones — such as an architectural design that blends, for the first time, Frank Lloyd Wright with Frank Gehry.

Even if Oracle’s source code can jump the foregoing copyright hurdles, the story doesn’t end there.The lower court has yet to decide whether Google has a fair use defense. In the end, if Oracle’s source code is original enough for copyright but not so original so as to read that protection broadly, then Google’s fair use big bad wolf will likely huff, puff, and blow over Oracle’s copyright lawsuit to the ground.

Devil’s in the details? Good news!

Devil’s in the details? Good news!

The Devil is in the details. Good news! This means picking a trade name for your new business venture will involve a great deal of planning and detail oriented thinking about your launch plan, and the market you serve. This will only serve you in good stead down the line.

Take, for example, a company called “Designbook.” According to a recent article, Established Firms Fight Startups on Names, they are a fledging upstart who is seeking entry into the now crowded social networking market. In attempt to gain a nationwide monopoly on their name, Designbook filed an application to register it’s name with the federal government’s Patent and Trademark office.

Guess who opposed the application? Facebook. According to the networking giant, Designbook’s use of “book” in it’s name is confusingly similar to the “book” used in “Facebook.” Of course, if Designbook was a pen manufacturer, Facebook’s claim wouldn’t likely have merit.

However, as applied to the social networking market, “book” has gained a worldwide reputation as being associated with “Facebook.” So the mammoth’s argument about confusingly similar use has merit — in this instance. Imagine if the market became saturated with “Desginbook,” “Loobook,” “Cokebook,” “Gangabook,” “Pornbook,” and so on? Such uses give the impression that the companies are affiliated with Facebook (as in the case of “Designbook” or “Lookbook”). Otherwise, the tradenames dilute the “Facebook” name (as in the case of “Cokebook,” “Gangabook,” and “Pornbook.”). Unlike confusion, dilution doesn’t require that folks think one brand is affiliated with the other, but merely that that the new brand — i.e. “Cokebook” — makes the famous brand — “Facebook” — less unique.

That being said, assume “Pornbook” launched a website, not in the social networking realm, but as a new humorous online publication by evolutionary biologists like E.O. Wilson for the study of sexual practices among Rhesus monkeys, in addition to other non-human mammals, throughout history. In that case, Facebook would be hard pressed to bring a claim. “Book” is a generic word. Facebook doesn’t own it. So the question becomes, how do you, as a new venture backed company, pick a good name to enter into an otherwise crowded market?

Be original. While “Designbook” describes, in some ways, what the company does, the trade name “Nike” does not. If you didn’t know that “Nike” referred to the shoe company, you’d otherwise think it may apply to a Greek God for victory — it does. All this means is that a company like “Designbook” needs to pick a more original — “fanciful” — name that doesn’t describe, in anyway, what they do. They then can make a splash in the market — like Nike did after Mr. Jordan helped revamp the brand. (Remember those Spike Lee/Michael Jordan commercials?) In the end, an original name can actually help “Designbook” gain more market share instead of merely being a “me too” Facebook.

Only by respecting the Devil and his details will you arrive at a sustainable, attention grabbing, name.

Is your design inspired or stolen?

Is your design inspired or stolen?

Are you a crook? Jonathan Adler may consider you one when you use an edited, transformed, and artistically styled sample of his pillow design to create a custom-made wallpaper design for a client. But would he be right? These days, it is getting harder to tell, but there are still guidelines that can help you navigate the sometimes murky waters separating inspiration from infringement.

To make a custom-made wallpaper design for a client, assume you copy Mr. Adler’s black vine design that was inspired by an ancient Japanese kimono vine design, and that there are many types of this vine design in the pillow market. You then transform the vines by making them look shabby and worn out, use pink instead of black, and infuse the pink with the copies of the American flag. Imagine, then, that you combine the transformed Adler design with 9/10 other types of content from elsewhere, including a starry sky design pattern from Ralph Lauren Home to make your wallpaper.

Does your wallpaper infringe Mr. Adler’s copyright in the kimono vine inspired pillow design? Does it matter if you made up your own vine design that differed from Mr. Adler’s design, but which used his, among others, as inspiration?

The answer to these two questions depends on a number of factors. For the first question, given that you clearly copied Mr. Adler’s design, the question is whether the “fair use” defense would apply, part of which asks whether you sufficiently “transformed” Mr. Adler’s design to make it different enough from the original. The closer you get to a complete metamorphosis of Mr. Adler’s design – think the caterpillar becoming a butterfly – the safer you are. That’s because if your work and Mr. Adler’s are that different then people won’t think that Mr. Adler designed your pillow.

For the second question, you may not even need to get to the fair use defense. That only comes into play when you have actually copied another person’s expression. Because you merely used Mr. Adler’s expression of the Japanese vine design, among others in the marketplace, as inspiration to create your work, and your work differs from Mr. Adler’s, then there would in all likelihood be no infringement. That’s because copyright doesn’t protect the idea of the Japanese vine design, only Mr. Adler’s particular expression of it. Given that his expression isn’t original in the marketplace, it will most likely receive less protection than something truly off the wall – and original.

In the end, a completely original design is the best policy. That being said, designs are rarely completely original. The more your design exactly resembles another person’s work, the closer you are getting to the infringement line.