One of the bedrock principles of copyright law is “it’s not what you said, it’s how you said it.” This is due to the statutory language of section 102(b) that copyright does not extend to any “idea, procedure, process, system, method of operation, concept, principle or discovery, regardless of the form in which it is described, explained, illustrated or embodied in such work.” The protection of processes, methods and systems is the realm of patent law, not copyright law.
That’s not to say that people will not try to get a copyright on a method or system. The reason? Copyright offers a much longer period of protection, 95 years for a copyright created by a business, as compared to 20 years for a patent. 1 To this fact we can add that getting a copyright is much quicker and easier than a patent, as the Copyright Office does not check for originality.
The first profession to be adversely affected by this rule were architects. Their plans were definitely protected by copyright, since they were drawings under section 102 (a). But, the resulting building was not protected, and therefore could be copied. Congress fixed this glitch in 1990 with the passage of the Architectural Works Copyright Protection Act. 2 There, Congress created a new class of work: “architectural works.” And in defining these works, the resulting building was included in the definition.
Not everyone is so lucky. Consider the case of RJ Control Consultants v. Rogers. 3 The Plaintiff here created a series of technical drawings for an “industrial control system related to plastic injection molding.” 4 After inducing the Plaintiffs to turn over copies of the technical drawings, the Defendants in turn delivered them to a third party to manufacture the devices, cutting Plaintiff out of the picture. 5 Understandably aggrieved, the Plaintiff registered the drawings for copyright, and when the registrations issued, sued for copyright infringement.
But the problem for the Plaintiff is that it had voluntarily turned over copies of the technical drawings. There was no evidence that further copies of the technical drawings had been made. This left the Plaintiff to rest its case on the argument that the creation of the resulting devices constituted “copying” that infringed on their rights. The District Court rejected this argument, and now the 6th Circuit Court of Appeals has upheld that decision.
The main problem with the Plaintiff’s case is that what it is really seeking is protection for the way the device operates, which section 102(b) says it cannot do, “regardless of the form in which it is…illustrated.”
As the Supreme Court has stated:
“Copyright law protects an author’s original expression, but does not give the author exclusive rights to use the ideas expressed in the author’s work…An author may only obtain protection for the ideas expressed by obtaining a patent.” 6
In the eyes of the 6th Circuit, to rule otherwise would be to elevate a copyrighted drawing to the equivalent of a patent.
“Copyright protection extends to the drawing itself, affording Plaintiffs the exclusive right to prepare derivative works, distribute copies and display the copyright. Such protection, however, does not extend to the use of those drawings to create the useful article described in those drawings, as patent law-with its stricter standards requiring novelty-governs use protection.” 7
But query whether the resulting device is not a “derivative work” of the technical drawing, which as the Court notes, the Plaintiff has the right to control.
Consider the character of Iron Man. For many years, he existed only in drawings on the pages of a comic book. If I were to use those drawings to make a three-dimensional action figure of Iron Man, arguably a “useful article,” would this be permitted under the rationale expressed here? Clearly, Marvel would sue, claiming the action figure is a derivative work of their copyrighted character. How is this different than the claim of the Plaintiff here?
The problem with this scenario is that the idea of Iron Man is a highly advanced suit of armor. This mere idea is free to be copied by anyone. How the suit looks and functions, is the expression of that idea, and that is what is protected. The armor is not, in and of itself, a functional device, but purely hypothetical.
In the end, Plaintiff here is seeking protection for what the law clearly says it cannot have: copyright protection for a method, system or process. Copyright in a technical drawing only protects the drawing, not the technique.
- United States Patent and Trademark Office, Patent Term Calculator ↩
- Understanding the Scope of Architectural Copyright Protection ↩
- 2020 WL 6878106 6th Circuit Court of Appeals 2020 ↩
- Id. at 1 ↩
- Id. at 1-2 ↩
- Baker v. Selden 101 U.S. 99 at 102 (1880) ↩
- 2020 WL 6878106 at 6 ↩