Legal framework for consultancy work? (take II)

Subject: Legal framework for consultancy work? (take II)
From: Geoff Hart <ghart -at- videotron -dot- ca>
To: TECHWR-L <techwr-l -at- lists -dot- techwr-l -dot- com>, David Neeley <dbneeley -at- gmail -dot- com>
Date: Sat, 03 Dec 2005 12:15:52 -0500

David Neeley corrected me on a significant point. I noted that "... you can copyright a design that specifies an exact and unusual position from the margin combined with exact typographic treatment (e.g., font size, leading, kerning)." David noted: <<Incorrect. For example, fonts (the design) cannot be copyrighted, but their *names* can be. There is some case law that says that the actual arrangement of the design--the geometric expression of the design--can be protected. However, if another implementation of the design is done "from the ground up" it generally cannot be defended. Manipulation of standard tools, such as adjustments of leading and kerning through kerning tables or whatever--cannot be copyrighted.>>

The problem is certainly more subtle than I suggested in my original reply. For example, I can visit any of the sites that Ansel Adams immortalized in his photos and take my own photograph using (as much as possible) the exact same camera position and lighting, and I can then sell my photographs with no fear of interference from the Adams estate. Similarly, I can use the same standard fonts and margins and basic text design you'll find in any cookie-cutter design for any book in the bookstore with no fear of legal consequences.

The problem comes when you start treading on design issues that could be considered unique and innovative. There's a whole host of "look and feel" issues that can get you in legal hot water. I recall a case from many years ago in which an advertising firm stole a freelance artist's concept for a particular image (something to do with an airline ad) and sold it to one of their clients; if memory serves, the freelancer won because he convinced a judge that even though the ad agency created their design "from the ground up", they had provided no significant intellectual input into creating something new that was distinctly their own.

Your point that "manipulation of standard tools" cannot be copyrighted is correct, but perhaps misleading. In the "reductio ad absurdum" sense, graphic designers all manipulate the same standard tools to create an image or page layout, yet they can nonetheless copyright their designs. After all, book designers get paid good money to create something semi-unique by manipulating exactly these standard tools.

I suspect the legal issue comes down to how standard the use of those tools really is, and that can be an awfully subjective opinion. How does one quantify (make somewhat objective) the point at which a design departs from "standard" (e.g., using bullets in a list) to "unique" (e.g., using customized bullets)? I don't know that answer.

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Geoff Hart ghart -at- videotron -dot- ca
(try geoffhart -at- mac -dot- com if you don't get a reply)
www.geoff-hart.com
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Follow-Ups:

References:
Legal framework for consultancy work: From: The Documentation Doctor
Legal framework for consultancy work?: From: Geoff Hart
Re: Legal framework for consultancy work?: From: David Neeley

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