Re: page construction and copyright

From: <ArborLaw[_at_]aol.com>
Date: Tue, 8 Apr 1997 10:12:09 -0400 (EDT)

In a message dated 4/7/97, Teresa Martin <tmartin[_at_]projectcool.com> wrote:
>
> With HTML, there are a limited number of ways one can do something.
> HTML isn't programming; it's basically typesetter markup tags with a
> screen as the output device. Claiming to own HTML markup seems to me
> to be a little like claiming to own the right to use a paintbrush to
> make a certain type of stoke on a page.

Under US copyright law, when there are by necessity a limited number

of ways that an "expression" can be achieved, there is a possibility 
that either the "merger doctrine" may be applied, or that there may 
be a finding of "thin copyright."  The merger doctrine basically holds 

that where idea and expression are merged, copyright cannot be applied to exclude similarity, because to do so would protect not only the expression of ideas but the ideas themselves, which is not allowed under the Act. "Thin copyright" has been referred to in a number of court decisions (and proposed/promoted by a number of legal experts) for the protection of a thin layer of protectable elements in an otherwise unprotectable work, where the remaining elements are dictated by functionality, or are in the public domain. In my opinion, the federal courts as a whole are bouncing around without a converging trend, as they apply both of these concepts to a number of different subject matter types.

How you or another party would fare in a hypothetical infringement action based on a pure HTML claim (ie, not including a claim in the underlying materials, or resulting design including graphics) would depend greatly on the appellate jurisdiction in which you found yourself at the time of the action, because different circuits are developing different rules.

Carol Shepherd
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   Carol Ruth Shepherd                          arborlaw[_at_]aol.com
                                          
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==--====-==-=-=-==--=--====--=-=-=-====---===-=-=-====---===---= Received on Tue Apr 08 1997 - 14:07:10 GMT