Copyright Extends to Places You Might Not Expect

When you think of works that are protected by copyright, you probably think first about written documents—both in print and online. Books, scholarly articles, manuscripts, news stories, maps, photographs and sheet music are, not surprisingly, all covered by applicable copyright rules.

But you may be surprised by some of the other kinds of works that are protected by copyright. I was—so I’ve explored some of these lesser-known areas of copyright.

Copyright, of course, is intellectual property protection for original works of authorship fixed in a medium of expression, and U.S. law on copyright goes back to the early days of the Republic. This includes works embodied in the most common and traditional media, as mentioned above. But it also protects works that are ordinarily distributed in more recently devised formats of media, including streaming music and software. While I could write a whole blog post about copyright as applied to computer code, and perhaps will at a later time, for now I’ll touch on software with a timely example and explore some of the other “hidden corners of copyright.”

Software – Awaiting the Final Verdict on Oracle America vs. Google

In the 1970s and 1980s, as explained by the World Intellectual Property Organization, there were extensive discussions on whether the patent system, the copyright system, or a sui generis system, should provide protection for computer software. These discussions resulted in the generally accepted principle that computer programs should be protected by copyright, whereas apparatus using computer software or software-related inventions should be protected by patent.

Since that time, there have been ongoing discussions and several lawsuits regarding software protection, with one of the most high-profile cases involving copyright infringement claims made by Oracle against Google beginning in 2012. (The suit actually started as primarily a patent case with some additional copyright claims, but the patent issues have already been resolved.)

The U.S. Supreme Court is expected to hear oral arguments on the copyright issues in the Google v. Oracle case in March 2020. The ruling will of course be important to Google and Oracle, but it is also expected to have long-term impact on the technology industry as a whole. We will be playing close attention.

Break a leg: Elements of Choreography and Pantomime

If you’re a regular theatre buff, or have attended a musical or ballet, you’ve likely seen original and amazing dance numbers on stage. Choreography, by definition, is the composition and arrangement of a related series of dance movements and patterns organized into a coherent whole.

And if you’ve walked through a big city’s park on a summer afternoon, you may have enjoyed a mime practicing his craft. Pantomime is the art of imitating, presenting, or acting out situations, characters, or events through the use of physical gestures and bodily movements. Choreography and pantomime consisting of ordinary motor activities, social dances, commonplace movements or gestures, or athletic movements may lack a sufficient amount of authorship to qualify for copyright protection. But others do meet the requirements.

To qualify for registration, a choreographic work or pantomime must be fixed in a tangible medium of expression in such a way as reveals the movements in sufficient detail to permit the work to be performed in a consistent and uniform manner. The US Copyright Office provides an excellent circular on this point here.

What’s your type? A Typeface Is a Big Piece of the Brand Puzzle

You’ve been looking at typefaces your whole life, whether you know it or not. You see them on street signs and billboards, in movies and on record labels, and in books and magazines. You may even have a visceral reaction to certain typefaces, like Helvetica, Times New Roman—dare I say it— the always contentious Comic Sans.

Yet despite the ubiquity of typefaces, and the sheer amount of time it takes to create a new typeface family, some creative professionals believe they can be used in their design projects at no cost. With the proliferation of free and open type, the confusion has grown.

A typeface can be central to a brand’s identity, logo, website and marketing materials. Having worked in the typeface market as well as publishing, the fact that some of the creative work is protected by copyright didn’t surprise me, but the ongoing question about how to properly license them continues to raise questions. Note, too, that the rules differ based on where in the world you live and use your creative design.

Then there are fonts. In the computer world, typefaces are created by fonts – which are software programs that generate the typefaces that you see. Use of fonts is guided by End User Licensing Agreements (EULAs) that dictate how and where you can use a font, so whether you choose a free font from Google, purchase one from a vendor like Adobe or Monotype, or work with a designer to customize a font specifically for your brand, you need to follow the agreement that governs your choice in order to remain copyright-compliant. If you want to grow the usage of your font over time—to more devices or communication channels—revisit your agreement.

To learn more about how copyright law protects typefaces and fonts, this FAQ by crowdspring’s Ross Kimbarovsky provides some good information to get started.

Aye Aye, Captain!

Boat hulls are covered by copyright? Well, yes, but mostly no. As a technical matter, boat hull designs can be protected by a law that is part of that Title of the United States Code that is primarily devoted to copyright and registration of boat hull designs is made in the Copyright Office, but the protection provided by that law is sui generis (that is, unique to the creation that is a boat hull). The Vessel Hull Design Protection Act, published as Chapter 13 of Title 17 of the United States Code, was signed into law on October 28, 1998, providing protection for original designs of vessel hulls.

Under the law, an owner of an original vessel design is granted certain exclusive rights if application for registration of the design is made with the Copyright Office within two years of the design being made public. Protection applies to original vessel designs embodied in actual vessel hulls that are publicly exhibited, publicly distributed, or offered for sale or sold to the public on or after October 28, 1998. You can learn how to register a vessel design in the instructions to the Copyright Office’s Form D-VH. Andrew Higgins’s design of the Eureka boat, detailed in the story “The Patented Boat that Won the War”, nicely illustrates the importance of intellectual property protection for unique design ideas like those in an innovative boat hull. After the Navy’s boat designs failed during trials, the service agreed to test the Eureka boat and ultimately awarded Higgins a contract to build landing craft for the military. Higgins extended the Eureka into a series of military boats, including the Landing Craft, Personnel (LCP) and Landing Craft, Personnel (Large) or LCP(L).

He then received U.S. patent no. 2,144,111 for boat hull construction on January 17, 1939. This patent protected the unique hull design that allowed his boats to land on beaches without getting their propellers stuck in the sand—a distinct military advantage that opened up many new options for planners to determine where to attack from the sea. The Vessel Hull Protection Act was enacted 50 years later and doesn’t provide the extent of protection that patent law does – because it doesn’t protect novel “inventions” – but Congress agreed that novel designs for boat hulls deserved protection that neither patent law nor traditional copyright law could otherwise provide to a useful article.

Mask Works for Semiconductor Chips

The Semiconductor Chip Protection Act (SCPA) of 1984 established a new type of intellectual property protection for mask works that are fixed in semiconductor chips. It did so by amending title 17 of the United States Code, adding chapter 9.1. Thus, as with boat hulls, protection for mask works is not copyright protection, although it is similar (and is administered by the Copyright Office).

The legal requirements for mask work protection differ from those for copyright protection in terms of eligibility for protection, ownership rights, registration procedures, term of protection, and remedies for rights violations. This Copyright Office circular on the topic provides information for registering claims under the SCPA for “mask works” (essentially the operative part of semiconductor chips).

According to the SCPA, protection extends to the three-dimensional images or patterns formed on or in the layers of metallic, insulating, or semiconductor material and fixed in a semiconductor chip product, that is, the “topography” of the “chip.” Although these images or patterns are purely functional features, they are nevertheless protected, provided that a mask work is neither dictated by a particular electronic function nor one of only a few available design choices that will accomplish that function.

You might wonder how long this copyright protection lasts. Protection for a mask work commences on the date the mask work is registered with the Copyright Office or the date the mask work is first commercially exploited anywhere in the world, whichever occurs first. Protection lasts for 10 years, terminating at the end of the 10th calendar year after it began.

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