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Dialogue vs. Copyright

What do you do when someone claims you stole from them?

We were recently contacted by a well regarded designer who felt that the some of the iPhone icons we were giving away for free, bore too close a resemblance to his own icons (which he was selling from his site), and that we were possibly infringing on his copyright.

We hadn’t seen his icons before, and knew we hadn’t copied them. Our hackles were raised, but fortunately we let it rest overnight and followed up the next day. How? We did the *Canadian* thing and politely replied to his email, explained the situation. After a couple emails, we easily came to agreement.

Who was right?

The episode left me with a lingering question. Was it even possible to infringe on someone’s copyright without ever having seeing their original work ? And further, what are the rules around copyrighting images and icons in particular.

Legal battles that shaped the computer industry.

After searching around and reading for a few hours I discovered that there are plenty of places that you can find typically obtuse legal information about copyright. We did, however, find an excellent  article, from a book titled “Legal battles that shaped the computer industry.” By Lawrence D. Graham. You can find it in google books

Two salient points from the article were:

1. “Icons are protected as soon as they are fixed in a tangible medium of expression.” This seems fairly self-evident; they need to exist in some format that is perceivable.

2. “Copyright law prohibits the unauthorized copying of the icon designs, but does not prevent others from independently developing and using similar designs. Unless a given icon design is particularly original and creative, copyright law prevents only the nearly exact copying of the icon design.

This second point leaves a bit of ambiguity. Essentially, if the icon is not ‘particularly original’, then copyright law prevents the exact or nearly exact copying of it.

However:

A. what does ‘not particularly original’ mean?
I’d be interested in hearing what others think, but after some thought, my interpretation would be that any ‘icon -> concept’ which has been created before would certainly not be ‘particularly original’. For example, the ‘lightbulb -> idea’ icon would not be particularly original, as it has been used for decades as the representation of the ‘eureka idea moment’.

and secondly,

B. what does ‘nearly exact copying’ mean? My interpretation would be that while ‘exact’ copies would be indistinguishable,’nearly exact’ designs would be merely difficult to distinguish.

The assessment

So turns out that, ‘yes’ you can be infringe on someone’s copyright without ever having seen their work. It  just takes a major coincidence (call it zeitgeist or the collective unconscious) . But ‘no’, based on my understanding of the copyright (see above) it was clear that our designs passed neither test to indicate copyright infringement.

Dialogue beats Courtrooms

What turned out to be more relevant than who was legally ‘in the right’, was my re-confirmation that most of the time, the person on the other end is acting in good faith, sincerely describing their position, and is often quite reasonable in  discussion and agreement. People are generally good at heart and in intention. Dialogue beats courtrooms.

2 Responses to Dialogue vs. Copyright

  1. Alvaro says:

    I’m not a legal expert but it seems to me that, except in those cases where the design is closely related, to say the least, or the icon symbolizes an original design (a logo or a product), there’s no way one can easily speak of copyright infringment. An icon of a trashcan will allways depict a trashcan, same for other stuff (arrows, reloads, discs, apps…), with millions of designers, it’s almost impossible not to find similar icons.

  2. D says:

    Alvaro,

    Agreed.. however based on my reading and notes above:

    a. if your trashcan icon is pixel for pixel exactly the same, then it is a copy.
    b. if your trashcan icon is so close that it is very difficult to distinguish, then it *might* be considered infringement.

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