In many copyright disputes the question of the “Look and Feel” theory invariably arises. The “Look and Feel” theory is strategically located in chapters 300, 900 and 1000 of the U.S. Copyright Office that eliminated copyright claims on these aspects for websites. Chapter “1007.4 Layout and Format” of the U.S. Copyright Office states that “Copyright law does not protect the overall appearance of a website” because it would impede the very purpose of copyright to promote creativity by limiting the ways in which creativity can be expressed. They fall into the realm of ideas that cannot be protected by copyright. The decision to add or place a banner, border, frame, login box, title, footer, video screen, text blocks, or other elements in certain positions cannot be registered in the absence of specific copyrighted content in those elements, because these types of choices do not constitute original authorship, US law emphasizes, so the “Look and Feel” theory is no longer used for copyright claims, as will be demonstrated and found in this Opinion. The Compendium is updated and published periodically by the U.S. Copyright Office. It provides guidance to copyright applicants, practitioners, academics, courts, and members of the general public on institutional practices and principles relating to copyright law. In particular, the Compendium states that “Look and Feel” copyright claims should be rejected. Indeed, forensic specialists need to equip themselves not only with the normative rationale, but also with an understanding of the theories that have implications for the legal reciprocity of the country from which such a methodology is used, and then consider whether such methodologies make sense in their technical assessments. LOOK AND FEEL The employment of the “Look and Feel” theory has been used by many forensic experts in litigation involving copyright and intellectual property, and one wonders why experts rely on this theory, because the “United States Copyright Office – Compendium of Copyright Practices, last updated in 2014, is very clear in chapters 300 , 900 and 1000 regarding “Look and Feel”: 310.4 Look and Feel The U.S. Copyright Office will not consider the so-called “look and feel” of a work. Invoking a work’s “feel” is not a viable substitute for an objective analysis of the work’s fixed and creative elements. See 4 Melville & David Nimmer, Nimmer on Copyright §13.03[A][1][c] (2013) (criticizing the use of “feel” as a “wholly amorphous referent” that “merely invites an abdication of analysis”). The U.S. Copyright Office does not take the “Look and Feel” of a work into consideration for copyright claims. Likewise, chapter 900 of the same U.S. legislation reinforces this: 914.2 Application Tips for Trademarks, Logos, and Labels When completing an application for a trademark, logo, or label, applicants should describe the pictorial, graphic, or sculptural authorship that the author contributed to the work. Applicants should avoid using vague terms, such as “trademark design,” “trade dress design,” “mark,” “logo,” “logotype,” or “symbol.” Likewise, applicants should avoid using the following terms which may be questioned by the registration specialist: “composite work,” “collective work,” “selection and arrangement,” “look and feel,” “distinctive,” “distinctiveness,” “totality of design,” or “total concept and feel.” The “Look and Feel” theory is also not accepted for trademarks, logos and labels, because it will be questioned. However, the even more incisive chapter regarding the “Look and Feel” aspects is documented in chapter 1000 of the US Copyright Office, more specifically in item 1007, where the US legislator is emphatic: 1007 Uncopyrightable Material A registration for a claim in website content does not extend to any uncopyrightable material contained within a website. In particular, the U.S. Copyright Office will refuse to register website content that does not constitute copyrightable subject matter or content that lacks a sufficient amount of original authorship. Examples of uncopyrightable material include, but are not limited to, the following: • Ideas, such as plans for future websites. • Functional design elements. • Domain names and hypertext links. • The layout, format, or “look and feel” of a website. • Common, unoriginal material, such as names, icons, or familiar symbols. See 17 U.S.C. § 102(b); see also 37 C.F.R. § 202.1. This type of material is discussed in Sections 1007.1 through 1007.4. For a general discussion of uncopyrightable material, see Chapter 300, Section 313. The US legislature makes clear, as to “Look and Feel”, which specific groups of elements should not be subject to copyright protection which include, but are not limited to: • Ideas, such as plans for future websites. • Functional design elements. • The layout, format or “Look and Feel” of a website. • Common, non-original material such as familiar names, icons, or symbols. These non-copyrightable elements have enormous relevance for litigation cases because even lawyers and judges rely on the expertise of forensic specialists to get into this particular segment of copyright protection. The graphic and functional similarity of many computer programs is due to the fact that frameworks are made up of themes and a vast library ready to be used and incorporated into a website. This is the reason why visual and functional aspects are removed from copyright, because the creation is by pre-existing patterns, without any original and intellectual creation of the human mind by the developer. ============================ Washington U. de Almeida Jr. Expert Witness TJSP and TRT2
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