On Wed, 16 Oct 1996, David Dailey <David.P.Dailey[_at_]williams.edu> wrote:
>
> <snip>
> The customer brings in a sample of the paint they want to match, the
> machine takes a picture, and then "reverse-engineers" the mixing of
> pigments to produce a match.
> <snip>
> Given the status of color as potentially trademarkable entity
> <snip>,
> I was wondering if this wonderful device might indeed be naughty.
>
> It is not too different, it seems, from the protection of a small set
> of parameters in software: a paint color can be seen as an n-tuple
> consisting of ratios of n various primary pigments, though perhaps the
> set of basic primaries varies from company to company.
This use of colors probably would be functional and noncopyrightable. See Copyright Office Circular 1, 37 C.F.R. Section 202.1 ("Several categories of works generally are not eligible for statutory copyright protection. These include among others ... mere variations of typographic ornamentation, lettering, or coloring ... ."); Williams Electronics, Inc. v. Bally Manufacturing Corp., 568 F. Supp. 1274, 1280-81 (N.D. Ill 1983) ("Applying this limitation on copyright protection to the instant case, it is evident that many elements of Hyperball are unprotected. The color, shapes and placements of the targets, ball cannon, grip handles, and indicator lights on the targets, the use of lettered targets to assist the player in scoring, and the shape of the speaker and back box are far from functionally superfluous and are physically inseparable from the functional elements of the game. [fn. 14] The colors, shapes and locations of these items have no conceptual significance apart from the role they play in the mechanical operation of the game. [fn. omitted] The color, shape and location of the cannons and targets, for example, are neither physically nor conceptually distinct from the cannons and targets themselves, which Williams concedes have utilitarian significance." Fn. 14: "Functional components of useful articles no matter how artistically designed have generally been denied copyright protection unless they are physically separable from the useful article." Norris Ind., Inc. v. International Tel. & Tel. Corp., 696 F.2d 918, 924 (11th Cir. 1983)).
Copyright 1996 by Brad Slutsky--all rights reserved. This mail message is NOT legal advice. I do not purport to speak for my employer or any of its clients. I may not even be expressing my own views. Nothing in this mail message shall be construed as a solicitation of any kind or as binding on myself, my employer, or any of its clients. Include this disclaimer in any fair use of this mail message.
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