IP Tech Knowledgy

A basic tenet of copyright law is that ideas are not protectable. Copyright law does protect the particular way an idea is presented. It is this original “expression” of the idea which the author can exclusively own and prevent others from copying. The idea/expression precept is reflected in different ways depending on the type of creative work. For software development, the “abstraction-filtration-comparison” test for infringement first requires a determination of whether the software coding represents a mere idea, or a new expression of how to achieve that idea. In art and literature, two people can create a work with the same themes and subject matter, provided that newer work depicts the themes with the artist’s own specifically original imagery or words. In advertising, competitors can tout the same services and benefits, provided the later ad does not copy the manner in which the first expresses its own qualities. In all situations, infringement occurs only when the later author has had access to the first author’s work, and the portion copied is substantially similar to the way first author expressed the idea in the original. Copying merely the idea is not an infringement.

Ned T. Himmelrich
410-576-4171 • nhimmelrich@gfrlaw.com