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Text File | 1992-11-03 | 37KB | 775 lines

IN THE UNITED STATES DISTRICT COURT
                             FOR THE
                    DISTRICT OF MASSACHUSETTS


                              )
Lotus Development Corp.,      )
                              )
     Plaintiff,               )
                              )
          v.                  )
                              )    Civil Action No. 90-11662-K
Borland International,        )
                              )
     Defendant.               )
                              )


     BRIEF AMICUS CURIAE ON BEHALF OF THE REGISTER OF COPYRIGHTS
I.   STATEMENT OF INTEREST OF THE COPYRIGHT OFFICE
     The Register of Copyrights is Director of the Copyright
office and Associate Librarian for Copyright services in the
Library of Congress.  As Register of Copyrights, he is authorized
to establish regulations for the administration of the functions
and duties made the responsibility of the Register under the
Copyright Act. 17 U.S.C.  702.  The Register is directed by law
to register any claim to copyright that constitutes copyrightable
subject matter and meets the other legal and formal requirements
of the Copyright Act. 17 U.S.C.  410(a).  Regardless of the
nature of the work presented, the Register uses the same standard
for determining copyrightable authorship, although the format in
which the work is created may be quite different.  For these
reasons, the Copyright Office, pursuant to Section 702, has
promulgated regulations covering registration of original works
of authorship.
      The Copyright Office has also developed a manual of
examining practices for the use of its professional staff in
making determinations regarding copyright registration--the
Compendium of Copyright Office Practices I (1973) and II (1984).
The Compendium contains Copyright Office interpretation and
practices concerning the Copyright Act and the regulations
promulgated to carry out that Act.
     In addition to making the Compendium generally available,
the office publishes information circulars on general copyright
topics and on different categories of works, EM, Copyright
Registration for Computer Programs, Circular 61, October, 1989
(hereafter Cir. 61).  The Copyright Office has also developed
specific examining practices for particular categories of
material, e.g., Computer Screen Display Practices.
     The Copyright Office's registration practices, as reflected
in the Compendium and other sources, should be brought to the
attention of this court impartially and objectively.  An
incorrect interpretation of the Copyright Office's underlying
practices in registering such works could significantly affect
the development of the copyright law.  Although the copyright-
ability of these claims is for the court to decide, the
specialized knowledge of the Register of Copyrights in this area
of the law should be of assistance to the court.
     In submitting this brief, the Register is not advocating a
particular result to be reached, but merely pointing out the
approach taken by the Copyright Office in this area.
     Accordingly, this brief should not be taken as commenting on
the copyrightability or scope of protection to be accorded the
works at issue in this case, i.e., those relating to Lotus 1-2-3.
                     JURISDICTIONAL SUMMARY
     The district court has exclusive jurisdiction of this action
     for copyright infringement under 28 U.S.C.  1338.
                       QUESTIONS PRESENTED
     The questions that the Register of Copyrights wishes to
address concern the extent to which certain registrations of
original works of authorship cover discrete components of these
works.
          1.   What are the practices of the Copyright office
               regarding registration of computer screen
               displays?

          2.   What standards does the Copyright Office apply to
               determine copyrightable authorship?

          3.   What practices does the Copyright Office apply
               when the claim to copyright purports to cover the
               entire work?

     II.  REGISTRATION PRACTICES REGARDING
          COMPUTER SCREEN DISPLAYS

     A.   Computer Screen Practices

     In 1988, following a public hearing and opportunity for
written comment, the office issued a registration decision
requiring that all copyrightable expression embodied in a
computer program owned by the same claimant, including computer
screen displays, be registered on a single application.  53 Fed.
Reg. 21817-21820 (1988).  See App. III, IV.  Thereafter, all
claims, including copyrightable screen displays, were to be
registered at the same time and on the same registration form
with the computer program.  37 C.F.R.  202.3(b)(6) (1990).  It
follows from the single registration rule that a registration for
a computer program covers any copyrightable authorship in the
screen displays, just as registration for a book covers all of
the book's copyrightable components.  Not all components of a
work, of course, are separately copyrightable. See, Feist
Publications, Inc, v. Rural Telephone Service Co., 111 S. Ct.
1282, 1289 (1991).  The typeface of a book, for example, would
not be covered by a registration on the book.
     In adhering uniformly to the single registration rule, the
Copyright Office sought firmly to establish that a single
registration for the computer program would cover any copy-
rightable authorship in the screen displays.  A fundamental
underlying object was to establish a clear, accurate, easily
understandable public record and to exclude from that record any
unjustified or otherwise insufficient claims. 53 Fed.  Reg.
21819.  We noted further that "subdividing claims might also
result in multiple infringement actions and multiple claims for
statutory damages, based on separate registration."  Id.
     B.   Menu Screens
     Whether a claim in a menu screen may be enumerated as
copyrightable authorship on the application and whether it is
protected as part of the single registration depends upon whether
the authorship in that screen, standing alone, will support a
claim to copyright.
     Menu screens are integral parts of computer programs, and
they may or may not contain copyrightable expression.  In
general, the Copyright Office does not address the copyright-
ability of a particular component of a work, unless a claim to
that component is asserted or implied in the registration.  In
that event, the Copyright Office examines the component to
determine whether or not, in the context of the entire
registration, the claim is justified.  Menu screens whose content
is determined solely by function may lack sufficient original
expression to support a copyright claim. Cf., Feist, 111 S. Ct.
at 1296 ("obvious" listing of name, town and telephone number
alphabetically by surname in a telephone directory does not
satisfy requirement of minimal creativity for a work of
authorship).
     Ordinarily, computer applications programs enable an end
user to manipulate material on a screen to achieve certain
results.  In the course of going about various tasks, the user
receives queries, prompts, and menus for accomplishing those
tasks.  In some cases, this material is not considered
copyrightable by the Office as it is simply a listing of the
particular commands that are available to the user of the
computer.  For example, the Copyright Office would not consider a
screen display that merely listed a menu of eight possible
choices that the user could select from a simple display to be
copyrightable.  See, e.g., Lotus v. Paperback Software, 740 F.
Supp. 37, 65 (D.  Mass. 1991) (two line moving cursor menu by
itself held not copyrightable).
     In other cases, however, the form of expression on these
screens is sufficiently extensive and original that it is subject
to copyright, just as a chapter in a book, or even a page of
text, might be subject to copyright if submitted separately.  As
we state in our circular on registration:

          The registration will extend to any related copyright-
          able screens, regardless of whether identifying
          material for the screens is deposited.  However, where
          identifying material for screens displays is deposited,
          it will be examined for copyrightability.  Where the
          application refers specifically to screen displays,
          identifying material for the screens must be deposited.
          Where the screens are essentially not copyrightable
          (e.g. de millimis menu screens, blank forms, or the
          like), the application should not refer to screens and
          the deposited identifying material should not include
          screens. (Emphasis added and in original). See Cir. 61,
          p.3. App. V.


III.  STANDARDS REGARDING COPYRIGHTABILITY

     A.   The Responsibility Of The Register
          To Determine Copyrightability

     The Register is responsible for determining copyrightability
in the first instance.  The Copyright Office is charged with
examining works that are submitted for registration of claims
copyright to determine whether or not the material deposited
constitutes copyrightable subject matter and the other legal and
formal requirements of the Copyright Act have been met. 17 U.S.C.
 410(a).  Where the material deposited does not constitute
copyrightable subject matter, the Register is directed to refuse
registration and explain to the applicant the reasons for such
refusal.  17 U.S.C.  410(b).
     Ultimately, the courts determine what is copyrightable, but
the Copyright Office takes seriously its responsibility for
determining copyrightability, to assure efficient administration
of the copyright law and to assist the courts in their ultimate
determinations.  In taking the position that registration for the
computer program covers any copyrightable authorship contained in
the computer program and the screen Displays, regardless of
whether identifying material for the screens is deposited, the
Copyright Office eschews the implication that all material
displayed on the screens is copyrightable.  To create a useful
registration record of computer programs, the Copyright Office
requires a statement of the basis of the claim in the form of a
description of the authorship.  Form TX, Line 2. See App. VI.
     B.   General Standards Of Copyrightability
     In determining whether the basis of the claim is
appropriate, the Copyright Office applies established standards
of copyrightability.  Although the 1976 revision substantially
modified the copyright law, it did not change the standards of
copyrightability.  Copyright protects "original works of
authorship."  17 U.S.C.  102(a).  The legislative reports note:
          The two fundamental criteria of copyright protection --
     originality and fixation in tangible form -- are restated in
     the first sentence of this cornerstone provision.  The
     phrase "original works of authorship," which is purposely
     left undefined, is intended to incorporate without chance,
     the standard of originality established by the courts under
     the present (1909) copyright statute . . . .
     . . . . Section 102 implies neither that that subject is
     unlimited nor that new forms of expression within that
     general area of subject matter would necessarily be
     unprotected. (emphasis added)

H.   Rep. No. 1476, 94th Cong., 2d Sess. 51 (1976); S. Rep. No.
473, 94th Cong., 1st Sess. 50-51 (1975).

     These standards are set out in the Compendium.  In order for
a work to be the subject matter of copyright under the current
law, it must be an original work of authorship.  Quality,
aesthetic merit, and ingenuity are not considered in determining
the copyrightability of a work.  In order to be an original work
of "authorship," the work must contain at least a certain minimum
amount of original creative expression. (Compendium II,
202.02).  See App.  VII.
     The law firmly establishes that ideas, processes, methods
and systems are outside the scope of copyright protection. 17
U.S.C.  102(b).  The application of this statutory prohibition
to computer programs can create a conundrum for a court.  With
respect to the nature of copyright and computer programs,
Congress acknowledged:
          Some concern has been expressed lest copyright in
     computer programs should extend protection to the
     methodology or processes adopted by the programmer, rather
     than merely to the "writing" expressing his ideas.  Section
     102(b) is intended, among other things, to make clear that
     the expression adopted by the programmer is the
     copyrightable element in a computer program, and that the
     actual processes or methods embodied in the program are not
     within the scope of the copyright law.

          Section 102(b) in no way enlarges or contracts the
     scope of copyright protection under the present law.  Its
     purpose Is to restate, in the context of the new single
     Federal system of copyright, that the basic dichotomy
     between expression and idea remains unchanged.
H.   Rep. at 57.

     C.   Application Of General Standards
          To Computer Screens

     The Copyright Office applies the same standards of
originality to all kinds of authorship submitted for
registration.  Like works in other categories that do not contain
sufficient copyrightable material, literary works (including
computer programs) submitted for registration that do not contain
sufficient copyrightable authorship are denied registration.
McIntyre v. Double-A Music Corp., 179 F. Supp. 160 (S.D. Cal.
1959); Bailie v. Fisher, 258 F.2d 425 (D.C. Cir. 1958); Smith v.
George E. Muehlebach Brewing Co., 140 F. Supp. 729 (W.D. Mo.
1956); E.H. Tate Co. v. Jiffy Enterprises, Inc., 16 F.R.D. 571
(E.D. Pa. 1954).  Where a copyright claim is asserted in a
particular subset of material within a larger unit of
publication, care must be-taken in examining the work to assure
that sufficient copyright authorship exists for that subset.
However, with respect to machine-readable works, the complete
work may not be deposited in the Copyright Office.  More than
usual reliance, therefore, may be placed on the application for a
description of the copyrightable content of a machine-readable
work.
     1.   Acceptable Authorship Claims
     Where an applicant describes a claim in terms that do not
     comport with the actual program deposited and claimed, the
     Copyright Office requests removal of that description to
     avoid a false representation to the public and the court
     that the Office has determined that the material so
     described does constitute copyrightable subject matter.
     Compendium Of Copyright Office Practices II  619.06. See
     App. VII.  Copyrightability of those aspects will be
     determined by the court.
          The Copyright Office encourages statements of
authorship that clearly reflect copyrightable authorship, and
which do not suggest copyright protection for ideas, methods or
processes.  For example, the Copyright Office requests statements
of authorship in well-settled copyrightable terms, and
discourages the use of terms that are ambiguous or imply claims
in uncopyrightable material.  Terms such as "computer program,"
"entire text of computer program," "entire program code" are
encouraged, but terms such as "ideas," "program logic,"
"algorithms," "systems," "methods," "concepts," or "layout," are
unacceptable.  Cir. 61, p. 2; Screen Display Practices, pp. 6-8.
See  App. V and VIII.  Circular 61, distributed to the public,
states:
          (T]he Copyright Office has consistently believed that a
     single registration is sufficient to protect the copyright
     in a computer program, including related screen displays,
     without a separate registration for screen displays or
     reference to the displays in the application.  An
     application may give a general description in the "nature of
     authorship" space, such as "entire work" or "computer
     program.  This description will cover any copyrightable
     authorship contained in the computer program and screen
     displays, regardless Of whether identifying material for the
     screens is deposited.

Cir. 61, p. 3.  See App. V.
     The Copyright Office will register claims to copyright in
specific screen displays where the applicants assert specific
claims in material contained in such displays.  They may describe
the authorship as, for example, "text of screen displays,"
"audiovisual material," or "artwork."  However, the Copyright
office will not accept less accurate or equivocal descriptions
such as "menu screens" "structure, sequence and organization,"
"layout," "format," or the like.  Such descriptions could suggest
that registration was made for ideas, concepts or processes,
which are not copyrightable subject matter under 17 U.S.C.
102(b), rather than for copyrightable expression.  In addition,
the Copyright Office does not wish to mislead the public and the
courts into believing that it has determined the material
specifically described on the application to be copyrightable.
          2.   Screens designed primarily
               to record information

     The copyright law does not protect blank forms which do not
convey information but merely serve as a medium upon which to
record information. 37 C.F.R. SS 202.1(c) (1990).  See Baker v.
Selden, 101 U.S. 99 (1879).  This regulation has been upheld by
the courts.  Brown Instrument Co. v. Warner, 161 F.2d 910 (D.C.
Cir. 1947), cert. denied, 332 U.S. 801 (1947) Safeguard Business
Systems Inc. v. The Reynolds and Reynolds Co., 14 U.S.P.Q.2d 1829
(E.D.Pa. 1990), aff'd without op., 919 F.2d 136 (3d Cir. 1990).
     It was most recently affirmed in Bibbero Systems. Inc. v.
Colwell Systems, Inc., 893 F.2d 1104 (9th Cir. 1990).  In that
infringement action, defendant developed nearly identical medical
"superbills" for use in obtaining reimbursement from insurance
companies.  The court found that:
          the purpose of plaintiff Bibberols superbill is to
          record information . . . . The superbill is simply a
          blat form that gives doctors a convenient method for
          recording services performed.  The fact that there is a
          great deal of printing on the face of the form -because
          there are many possible diagnosis and treatments --
          does not make the form any less blank. [Citing the
          Copyright Office blank form rule and our proceeding at
          43 Fed. Req. at 63299.]

893 F.2d at 1106-07.
     Screens designed primarily to record information require the
same analysis as any other form in determining whether they
themselves convey sufficient information to be copyrightable, or
merely serve as a medium to record information.  The fact that a
blank form appears on a computer screen, rather than on a sheet
of paper, does not alter the issue involved.  Where screens of
this type are submitted as separate works, the Copyright Office
applies the same long-established examining practices used with
blank forms.  The pertinent regulation states that blank forms,
such as time cards, graph paper, account books, report forms,
-order forms, and the like, which are designed for recording
information and do not in themselves convey information, are not
subject to copyright, and the Office cannot register such works.
    However, forms that convey information may be protected.
This includes screen displays of such forms, since screens are
judged by traditional standards of copyrightability.
          3.   Ideas and Functionally Determined
               Expression are not Copyrightable

     In addition to the uncopyrightability of works containing
insufficient authorship, copyright protection is denied to a form
of expression that is determined by the idea it expresses.
     The Final Report of the National Commission on New
Technological Uses of Copyrighted Works (CONTU Report) observes
that:

          copyrighted language may be copied without infringing
          when there is but a limited number of ways to express a
          given idea.  This rule is the logical extension of the
          fundamental principle that copyright cannot protect
          ideas.  In the computer context, this means that when
          specific instructions, even though previously copy-
          righted, are the only and essential means of accomp-
          lishing a given task, their later use by another will
          not amount to an infringement.  Citing, Continental
          Casualty Co. v. Beardsley, 253 F.2d 702, 706 (2d Cir.
          1958)]

CONTU Report, p. 20.  See App. IX.
     In Morrissey v. Procter & Gamble Co., 379 F.2d 675 (1st Cir.
1967), the court established the principle that where a work was
so simple and so straightforward as to leave available only a
limited number of forms of expression of the substance of the
subject matter, the expression would be uncopyrightable.  There
the plaintiff had created a set of contest rules.  Defendant had
admittedly copied them and acknowledged that there was more than
one way of expressing the substance of the rules.  Nevertheless,
in holding the work uncopyrightable, the court reasoned that:
          to permit copyrighting would mean that a party or
          parties by copyrighting a mere handful of forms, could
          exhaust all possibilities of future use of the sub-
          stance. In such circumstances it does not seem accurate
          to say that any particular form of expression comes
          from the subject matter.  However, it is necessary to
          say that the subject matter would be appropriated by
          permitting the copyrighting of its expression.  We
          cannot recognize copyright as a game of chess in which
          the public can be checkmated. [Citing, Baker v.
          Selogn.]

Id., at 678-79.

     Similarly, in E.H. Tate Company v. Jiffy Enterprises, 16
F.R.D. at 573, a small sketch and an accompanying instruction to
"Apply hook to wall" were held uncopyrightable because there were
few, if any, other ways to convey the underlying idea of how to
use the article without using substantially the same sketch and
instructions.
          4.   Mere Listings of Ingredients
               are not Copyrightable

     Mere listings of contents or ingredients have been held not
copyrightable, because they are "forms of expression dictated
solely by functional consideration."  1 NIMMER 201[B] at 2-14.
See also,  37 C.F.R.  202.1(a); Kitchens of Sara Lee, Inc. v.
Nifty Foods Corporation, 206 F.2d 541 (2d Cir. 1959).
     In Perma Greetings, Inc. v. Russ Berrie & Co. 598 F. Supp.
445, 448 (E.D. Mo. 1984), the court looked at mug-type coasters
containing short familiar phrases and held them not subject to
copyright, noting that "phrases and expressions conveying an idea
that is typically expressed in a limited number of stereotypic
fashions, are not subject to copyright protection." at 448,
quoting Alexander v. Haley, 60 F. Supp. 40, (S.D.N.Y. 1978).
     In Magic Marketing Inc. v. Mailing Services of Pittsburgh,
Inc., 634 F. Supp. 769 (W.D. Pa. 1986), the court held that
envelopes with instructions printed on them were not copyright-
able.  In looking at the language on the envelope, the court
noted that the listing of the contents of an envelope or package,
like a listing of ingredients, is not protected under copyright
regulations.  37 C.F.R.  202.1(a).  The court held that
instructions on the envelope that were "nothing more than a
direction or instruction for use" are not protected.
Furthermore, the court observed:
     More complex directions, such as the serving directions on a
     frozen dessert package, are not copyrightable.  Kitchens of
     Sara Lee Inc, v. Nifty Foods Corp.  266 F.2d 541 (2nd dir.
     1959) . . . . In sum, the phrases printed on the envelopes
     are generic in nature and lack the minimal degree of
     creativity necessary for copyright protection.

Id. at 772.

     Finally, in Ashton-Tate v. Ross, 916 F.2d 516, 521-22 (9th
Cir. 1990), aff'q, 728 F. Supp. 597, 602 (N.D. Cal. 1989), the
court held that a one-page handwritten list of user commands that
were incorporated as part of the user interface was not a
copyrightable part of the computer program.  "The list simply
does not qualify for copyright protection.  916 F.2d at 521-22.
IV.  "ENTIRE WORK" ENCOMPASSES ONLY
     COPYRIGHTABLE AUTHORSHIP

     Copyright registration in a computer program covers the
entire copyrightable expression embodied in that program.  Thus,
flow charts, source codes, and object codes may all be
protectible.  As specified in our regulation and in Circular 61,
screen displays may be protected to the extent they contain
copyrightable authorship.  If screen displays are mentioned on
the application, they will be examined.  Many registrants,
however, claim copyright in the "entire work" without submitting
a specific claim in the screen display.
     The Copyright Office accepts a claim in the "entire work" on
the understanding that "entire work" refers only to the
copyrightable content of the work of authorship.  When the
Copyright Office accepts a claim in the "entire work," neither
the public nor the courts should assume that the Copyright Office
has made a determination that individual component parts of the
work are necessarily entitled to copyright protection as original
works of authorship.
     In Manufacturers Technologies Inc. v. Cams, Inc., 706 F.
Supp. 984 (D. Conn. 1989), the court considered screen displays
both where there was only one registration to cover both the
program and screen displays, and where other screen displays had
been registered separately.  The court, noting that a unitary
registration would only cover copyrightable authorship, wrestled
with the question of which, if any, of the different screen
displays for computer programs designed to aid in making cost
estimates were subject to copyright protection.  706 F. Supp. at
993.  The court held a series of screen displays copyrightable,
holding that:

          The defendant has failed to rebut the presumption of
          copyright validity of this aspect of the screen
          displays.  The flow of the plaintiff's screen displays
          reflect plaintiff's creative manner of expressing how
          the process of cost-estimating should be accomplished.

706 F. Supp. at 994.  It further noted that the flow and
sequencing of these screens evidenced copyrightable selection and
arrangement which, under Eckes v. Card Price Undate, 736 F.2d
859, 862-63 (2d Cir. 1984), it equated with copyrightable
expression.  706 F. Supp. at 994.
     By contrast, the court held that certain aspects of the
screen formatting style and method of "navigating" from one
screen to another by use of certain keys were uncopyrightable
because of the limited number of ways of expressing the
underlying idea. 706 F. Supp. at 994-96.  Similarly, it held that
four screens consisting of alphabetical displays of the
departments were got subject to protection.  The court reasoned
that this "expression is not a proper subject of protection
because it is necessarily incident to the idea of listing the
departments, and where is no original authorship in this
unadorned two-column alphabetical.listing."  Id., at 996.  With
regard to two other screens, the court also noted that functional
considerations played a significant role in what data was given
to the user and held that those screens were not copyrightable.
Id., at 998.  However, the court also held that a "job
identification" screen was copyrightable under the "blank forms"
analysis because it conveyed information in its manner of
identifying a particular job. at 997.
     In addition, several other cases, some of which predate the
1988 single registration rule, have treated the issue of the
degree to which menu screens, or a series of related menu
screens, constitute copyrightable expression.  In Digital
Associates, Inc. v. Softklone Distributing Corp., 659 F. Supp.
449, 457 (N.D. Ga. 1987), the court held that a separately
registered status screen for a program was copyrightable.  The
court held that if considered as a form, it conveyed sufficient
information to be copyrightable.  Id., at 462.  Alternatively, it
held that it could be considered a copyrightable compilation of
program terms.  Id., at 463.
     In Broderbund Software, Inc. v. Unison World, Inc., 648 F.
Supp. 1127 (N.D. Cal. 1986), the court held that a sequence of
menu screens, forming a "user interface," was copyrightable,
noting "stylistic creativity" in the screens beyond the basic
instructions conveyed by them.  Id, at 1134.  The issue of
idea/expression merger in the context of a menu screen or
sequence of screens is also discussed in Johnson Controls, Inc,
v. Phoenix Control Systems, Inc., 886 F.2d 1173, 1175 (9th Cir.
1989) (affirming grant of preliminary injunction) and
Telemarketing Resources v. Symantec Corp., 12 USPQ2d 1991,
1995-96 (N.D. Cal. 1989)(granting summary judgment upon finding
that the copyrightable expression in plaintiff's menu screens was
not substantially similar to that in defendant's menu screens). .
                           CONCLUSION
     The court ultimately determines copyrightability.  The
Register of Copyrights is directed to register or refuse to
register a claim submitted for copyright based on examination of
the claim and a d termination of whether or not it constitutes
copyrightable subject matter.  In the course of registering more
than a half million claims annually, moreover, the Copyright
office has broad experience in determining copyrightability, and
applies the generally accepted "original work of authorship"
standards set forth in the Compendium II.
     The Office's registration standards do not vary from format
to format.  However, a particular medium, such as computer screen
displays, may raise issues of whether expression is functionally
determined, or limited by Morrissey v. Proctor & Gamble 379 F.2d
criteria.  (1st Cir. 1967), or the blank form criteria.  37
C.F.R.  202.1(c).
                              RESPECTFULLY SUBMITTED,

                              STUART G. GERSON
                              Assistant Attorney General

                              WAYNE BUDD
                              United States Attorney




                              PAUL G. LEVENSON
                              Assistant United States Attorney
                              1107 John W. McCormack Federal
                                   Bldg.
                              U.S. Post Office & Courthouse
                              Boston, Massachusetts 02109
                              Tel:  [phone]

                              VITO J. DIPIETRO
                              Director




                              JOHN FARGO
                              Assistant Director
                              Commercial Litigation Branch
                              Civil Division
                              Department of Justice
                              Washington, D.C. 20530
                              Tel:  [phone]

OF COUNSEL:

RALPH OMAN
     Register of Copyrights
DOROTHY SCHRADER
     General Counsel
     Copyright Office
CHARLOTTE DOUGLASS
     Principal Legal Adviser
Copyright Office
                       TABLE OF CONTENTS

                                                              Page

I.    STATEMENT OF INTEREST OF THE COPYRIGHT OFFICE. . . . .    1

II.   REGISTRATION PRACTICES REGARDING
      COMPUTER SCREEN DISPLAYS . . . . . . . . . . . . . . .    3

      A.   Computer Screen Practices . . . . . . . . . . . .    3

      B.   Menu Screens. . . . . . . . . . . . . . . . . . . .  5

III.  STANDARDS REGARDING COPYRIGHTABILITY . . . . . . . . . .  6

      A.   The Responsibility of The Register
           To Determine Copyrightability . . . . . . . . . . .  6

      B.   General Standards Of Copyrightability . . . . . . .  7

      C.   Application of General Standards
           To Computer Screens . . . . . . . . . . . . . . . .  9

           1.    Acceptable Authorship Claims. . . . . . . .   10

           2.    Screens designed primarily
                 to record information . . . . . . . . . . .   11

           3.    Ideas and Functionally Determined
                 Expression are not Copyrightable. . . . . .   13

           4.    Mere Listings of Ingredients
                 are not Copyrightable . . . . . . . . . . .   14

IV.  "ENTIRE WORK" ENCOMPASSES ONLY
     COPYRIGHTABLE AUTHORSHIP. . . . . . . . . . . . . . . .   16

APPENDIX . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

                      TABLE OF AUTHORITIES


Cases                                                        Page

Alexander v. Haley,
     460 F. Supp. 40 (S.D.N.Y. 1978) . . . . . . . . . . . . . 15

Ashton Tate v. Ross
     916 F.2d 516 (9th Cir. 1990),
     aff'g, 728 F. Supp. 597 (N.D. Cal. 1989). . . . . . . . . 15

Bailie v. Fisher,
     258 F. 2d 425 (D.C. Cir. 1958). . . . . . . . . . . . . . .9

Baker v. Selden, 101 U.S. 99 (1879). . . . . . . . . . . . 11, 14

Bibbero Systems, Inc. v. Colwell Systems, Inc.,
     893 F.2d 1104 (9th Cir. 1990) . . . . . . . . . . . . . . 12

Broderbund Software, Inc. v. Unison World, Inc.,
     648 F. Supp. 1127 (N.D. Cal. 1986). . . . . . . . . . . . 18

Brown Instrument co. v. Warner,
     161 F.2d 910 (D.C. Cir. 1947),
     cert. denied, 332 U. S. 801 (1947). . . . . . . . . . . . 11

Continental Casualty Co. v. Beardsley,
     253 F.2d 702 (2d Cir. 1958) . . . . . . . . . . . . . . . 13

Digital Communications Associates, Inc. v.
     Softklone Distributing Corp.,
     659 F. Supp. 44.9 (N.D. Ga. 1987) . . . . . . . . . . . . 18

E.H. Tate Co. V.-#iffy Enterprises, Inc.,
     16 F.R.D. 57% (E.D. Pa. 1954) . . . . . . . . . . . . .9, 14

Eckes v. Card Price Update,
     736 F.2d 859 (2d Cir. 1984) . . . . . . . . . . . . . . . 17

Feist Publications, Inc. v.
     Rural Telephone Service Co.,
     111 S. Ct. 1282 (1991). . . . . . . . . . . . . . . . . 4, 5

Johnson Controls, Inc. v.
     Phoenix Control Systems, Inc.,
     886 F.2d 1173 (9th Cir. 1989) . . . . . . . . . . . . . . 18

Kitchens of Sara Lee, Inc. v.
     Nifty Foods Corporation,
     206 F.2d 541 (2d Cir. 1959) . . . . . . . . . . . . . 14, 15

Lotus v. Paperback Software,
     740 F. Supp. 37 (D.  Mass. 1991). . . . . . . . . . . . . .6
Cases                                                       Page

Magic Marketing Inc. v. Mailing Services
     of Pittsburgh, Inc., 634 F. Supp. 769
     W.D. Pa. 1986). . . . . . . . . . . . . . . . . . . . . . 15

Manufacturers Technologies Inc. v. Cams, Inc.,
     706 F. Supp. 984 (D.  Conn. 1989) . . . . . . . . . . .16-18

McIntyre v. Double-A Music Corp.,
     179 F. Supp. 160 (S.D. Cal. 1959) . . . . . . . . . . . . .9

Morrissey v. Procter & Gamble Co.,
     379 F.2d 675 (1st Cir. 1967). . . . . . . . . . . . . 13, 19

Perma Greetings, Inc. v. Russ Berrie & Co.
     598 F. SUPP- 445 (E.D. Mo. 1984). . . . . . . . . . . . . 14

Safeguard Business Systems Inc. v.
     The Reynolds and Reynolds Co.,
     14 U.S.P.Q.20 1829 (E.D.Pa. 1990),
     aff'd without op., 919 F.2d 136 (3d Cir. 1990). . . . . . 11

Smith v. George E* Muehlebach Brewing Co.,
     140 F. Supp. 729 (W.D. Mo. 1956). . . . . . . . . . . . . .9

Telemarketing Resources v. Symantec Corp.,
     12 USPQ2d 1901 (N.D. Cal. 1989) . . . . . . . . . . . . . 15


Statutes

17 U.S.C. 102(a). . . . . . . . . . . . . . . . . . . . . . . .7

17 U.S.C. 102(b). . . . . . . . . . . . . . . . . . . . 8, 9, 11

17 U.S.C. 410(a). . . . . . . . . . . . . . . . . . . . . . 1, 7

17 U.S.C. 410(b). . . . . . . . . . . . . . . . . . . . . . . .7

17 U.S.C. 702 . . . . . . . . . . . . . . . . . . . . . . . . .1

28 U.S.C. 1338. . . . . . . . . . . . . . . . . . . . . . . . .3
Regulations                                                  Page

37 C.F.R. 202.1(a). . . . . . . . . . . . . . . . . . . . .14, 15
37 C.F.R. 202.3(b)(6) (1990). . . . . . . . . . . . . . . . . . 4
37 C.F.R. 202.1(c) (1990) . . . . . . . . . . . . . . . . .11, 19

43 Fed. Reg. 965 (1978). . . . . . . . . . . . . . . . . . . . . 4

43 Fed. Reg. 63299 . . . . . . . . . . . . . . . . . . . . . . .12

53 Fed. Reg. 21817-21820 (1988). . . . . . . . . . . . . . . .3, 4

53 Fed. Reg. 21819 . . . . . . . . . . . . . . . . . . . . . . . 4


Legislative Material

H. Rep. No. 1476, 94th Cong., 2d Sess. 51 (1976) . . . . . . .8, 9

S. Rep. No. 473, 94th Cong., 1st Sess. 50-51 (1975). . . . . . . 8

Other

1 NIMMER 201[B) at 2-14. . . . . . . . . . . . . . . . . . . . .14

Compendium of Copyright Office
     Practices I (1973) and II (1984). . . . . . . . .2, 8, 10, 19

Copyright Registration for Computer
     Programs, Circular 61, October, 1989. . . . . . .2, 6, 10, 11

Final Report of t#e National Commission on
     New Technological uses of Copyrighted Works . . . . . .13, 16