That's a Nice Looking Program: Copyright Protection for Screen Displays as Part of Source Code


There are a number of cases addressing whether copyright protection of a computer program’s source code will extend to the screen display. Many of these cases speak in favor of the screen display’s added protection, albeit, under a given set of conditions.

According to the case of Lotus Development Corp. v. Borland Intern., Inc., 788 F.Supp. 78 D.Mass.,1992, a user interface for computer program spreadsheet, as a whole, is copyrightable. Copyright registration of computer code extends to screen displays; therefore, reports generated by a program designed to automate marketing services for are protectable to the extent that they contain copyrightable expression. Harbor Software, Inc. v. Applied Systems, Inc., 925 F.Supp. 1042 S.D.N.Y.,1996.

The following article discusses the Abstraction-Filtration Comparison test, which will be used to determine whether a screen display is entitled copyright protection along with its corresponding source code. Throughout this test, a determination will need to be made whether the screen display purpose falls into one of the following categories: (1) Scenes a Faire; (2) Merger of Idea and Expression; (3) Method of Operation; or (4) Blank Forms. If so, the screen display will probably not be entitled copyright protection.

I. INTRODUCTION:
A major criterion used when determining whether a screen display is entitled copyright protection will be whether the screen display constitutes expression or ideas. Nonliteral components of computer software, including structure, sequence, organization and user interface, may be protected by copyright when they constitute expression, rather than ideas. Harbor Software, Inc. v. Applied Systems, Inc., 925 F.Supp. 1042 S.D.N.Y.,1996. In the case of Johnson Controls, Inc. v. Phoenix Control Systems, Inc., 886 F.2d 1173 C.A.9.Ariz.,1989, the selection and arrangement of elements in screen reports and displays generated by computer program designed to automate marketing services for insurance agencies satisfied minimal requirement of originality to warrant copyright protection.

The older case law of Synercom Technology Inc. v. University Computing Co., 462 F.Supp. 1003 D.C.Tex., 1978, held that the sequence and ordering of data by plaintiff was the idea and there was thus no copyright infringement; however, if the court was wrong in its finding that the order and sequence are expressed ideas and not expressions, its alternative holding was that the formats, themselves, were not copyrightable.

However, in the more recent case of Whelan Associates, Inc. v. Jaslow Dental Laboratory, Inc., 797 F.2d 1222C.A.3 (Pa.), 1986, the structure of a computer program for dental laboratory record keeping was not necessary to the idea of efficient organization of the dental laboratory, given variety of program structures through which the idea could be expressed, and thus structure of the program was part of expression, not idea, of program, and structure could be protected by copyright; Synercom Technology Inc. was also disregarded when Whelan Associates, Inc. stated that copyright protection of computer programs may extend beyond programs' literal code to their structure, sequence, and organization, copyright principles derived in other areas are applicable in field of computer programs.

II. ABSTRACTION-FILTRATION COMPARISON TEST:
In order to determine whether there has been copyright violation of a computer program, courts are to apply the "Abstraction-Filtration-Comparison" test, under which the program is dissected according to its varying levels of generality ("abstractions test"), each level of abstraction is examined in order to filter out those elements of program which are unprotectable, such as ideas, processes, facts, public domain information, merger material, scenes a faire, and other unprotectable elements suggested by particular facts of program under examination ("filtration test"), and remaining protectable elements are compared with the allegedly infringing program, to determine whether defendants have misappropriated substantial elements of plaintiff's program ("comparison test"). Gates Rubber Co. v. Bando Chemical Industries, Ltd., 9 F.3d 823 C.A.10.Colo.,1993.

III. SCENES A FAIRE DOCTRINE:
Under the "scènes à faire doctrine," courts will not protect a copyrighted work from infringement if the expression embodied in the work necessarily flows from a commonplace idea; like merger, in which an idea and the single way of expressing that idea are merged, the rationale is that there should be no monopoly on the underlying unprotectable idea. Ets-Hokin v. Skyy Spirits, Inc., 225 F.3d 1068 C.A.9 (Cal.),2000.

According to Gates Rubber Co., scenes a faire doctrine excludes from copyright protection those elements of computer program that have been dictated by external factors, such as hardware standards and mechanical specifications, software standards and compatibility requirements, computer manufacturer design standards, target industry practices and demands, and computer industry programming practices.

IV. MERGER DOCTRINE:
The merger doctrine will deem a work uncopyrightable if the ideas expressed by that work were merged with the expression. In the case of Educational Testing Services v. Katzman, 793 F.2d 533 C.A.3.N.J., 1986, the principle of merger did not apply to questions on a testing service's examinations causing idea and expression to merge and, thus, causing questions not to be covered by the testing service's "secure test" copyright registration.

According to Synercom Technology, Inc. v. University Computing Co., 462
F.Supp. 1003 N.D.Tex., 1978, in a suit for copyright infringement of instruction manuals and input formats used with a computer program designed to solve engineering problems incident to the analysis of structures, the formats were copyrightable if the ideas they expressed were separable from their expression.

As a result of the merger doctrine, an author must pay more attention to the expressive purpose of the work than that of its idea or utilitarian function. In Engineering Dynamics, Inc. v. Structural Software, Inc., 26 F.3d 1335 C.A.5.La., 1994, the expressive purpose outweighed utilitarian function of input formats in a computer program designed to solve engineering problems in the field of structural analysis to warrant copyright protection, where input formats as whole conveyed substantial information regarding data to be gathered and how they should be organized for the program to run properly; the program contained original expressive content in selection, sequence and coordination of inputs.

V. METHOD OF OPERATION:
An additional burden that will prevent a screen display work from being copyrightable is if the screen display work serves as a method by which the program operates and is controlled. As an example, a menu command hierarchy for a computer spreadsheet program is an uncopyrightable "method of operation"; command hierarchy does not merely explain and present program's functional capabilities to the user but also serves as a method by which program was operated and controlled. Lotus Development Corp. v. Borland Intern., Inc., 49 F.3d 807 C.A.1 (Mass.), 1995. According to Lotus Development Corp., expressive choices made in arranging command terms for a menu command hierarchy used in a computer spreadsheet program is a part of the program's "method of operation" and is not copyrightable.

VI. BLANK FORMS:
Yet another criterion for the author to consider when intending to have a screen display copyrighted in addition to the source code is whether the screen display constitutes a blank form. Blank forms or charts are, generally, not copyrightable. But an exception exists if the form or chart contains language explanatory of and inseparably included in the copyrighted textual material. Januz Marketing Communications, Inc. v. Doubleday & Co., Inc., 569 F.Supp. 76 S.D.N.Y.,1982.

In the case of Digital Communications Associates, Inc. v. Softklone Distributing Corp., 659 F.Supp. 449 N.D.Ga., 1987, Crosstalk XVI "Main Menu" status screen for a computer program, which involved arrangement of commands under descriptive parameter headings that aided user in easier understanding of availability, importance, and functioning of various commands and which involved highlighting and capitalizing of certain letters of commands to assist user, was not a "blank form" and, therefore, could be copyrighted to the extent of arrangement and design of the parameter/command terms, even though the status screen alone would be insufficient to explain to the novice user availability of commands, meaning of commands, or symbols necessary to enter certain commands, where expression did not merge into idea. In Whelan Associates, Inc., the comprehensiveness and complexity of file structures pertaining to a computer program for dental laboratory record keeping made file structures sufficiently informative to deserve copyright protection, despite their being analogized to "blank forms" as storage places for data.

Likewise, in Bibbero Systems, Inc. v. Colwell Systems, Inc., 893 F.2d 1104 C.A.9.Cal., 1990, billing forms known as "superbills" which doctors used to obtain reimbursement from patients' insurers were not copyrightable as compilations; rather, the forms were uncopyrightable blank forms.

VI. Conclusion:
For copyright protection of a computer program’s source code to extend to the screen display, the screen display must pass the Abstraction-Filtration Comparison Test. A good example to follow would be the standards offered in Lotus Development Corp. v. Paperback Software Intern., 740 F.Supp. 37 D.Mass.,1990. There, the menu command structure of a computer spreadsheet program, including the choice of command terms, the structure and order of those terms, their presentation on the screen, and the long prompts, was copyrightable; the menu command structure was capable of being expressed in many if not unlimited number of ways, was an original and nonobvious way of expressing command structure, and was a substantial part of the spreadsheet program.

© HASEEB R. JABBAR, 2003