Copyright Codex explains copyright law with plain language and visual comparisons. Its a work in progress. We try to answer questions like “when is software copyrightable?” and “when does new software infringe on an existing copyright?”
Here’s a few examples in software, art, and literature:
Fair Use in Appropriation Art: Cariou v. Prince
The allowable scope of “transformative” fair use was broadened in 2013 by Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013). A new work is transformative, and therefore fair use, if it shows a “new expression, meaning, or message.”
Photoshopping and Fair Use: Leibovitz v. Paramount
Annie Leibovitz sued paramount for photoshopping Leslie Nielson’s head into her famous photo. It was for a movie advertisement, which is a commercial use. A defendant’s commercial use tends to weigh against fair use. However, the court decided the Naked Gun poster was “transformative” and therefore fair use.
Video Game Design Elements: Atari v. Philips
Philips admitted that it copied from Pac-Man, but claimed fair use. It argued that “KC Munchkin” only copied elements that were necessary for a maze-chase game. The court disagreed: the gobbling protagonist and colorful ghosts were original to Pac-Man, and not necessary components to all maze-chase games. KC Munchkin was not fair use.
Parody: Dr. Seuss v. Penguin
Parody weighs in favor of fair use, but satire may not. In a parody, the copyrighted work is the target of ridicule. In a satire, the copyrighted work is merely a vehicle to poke fun at another target. Since Dr. Juice’s book used Dr. Seuss’ copyrighted stovepipe hat, but Juice didn’t ridicule Seuss, the court decided against fair use.
GUI Design Elements: Apple v. Microsoft
In the late ’80s Microsoft copied visual design elements from the Apple’s groundbreaking GUI. The two UI’s are similar, especially in their ability to display overlapping windows (a big deal at the time). But the court found fair use.
Although the two operating system GUI’s share many similar elements, the court didn’t compare every element. Before making a comparison, the court “filtered out” two types of design elements: (1) elements that were in the public domain, and (2) elements that Apple had licensed to Microsoft. After this filtration step, there weren’t many design elements left. The court decided that Microsoft’s copying of a handful of remaining design elements was fair use.
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