Federal Appellate Court Rejects "Look and Feel" Copyright Protection For Apple Macintosh Graphical User Interface

Apple Computer's Macintosh revolutionized the computing world in 1984 with a graphical user interface ("GUI") that used pictures of typical desktop items to represent its functions. In 1988 it brought suit to prevent Microsoft Corp. from using similar features in its product, Windows. On September 19, 1994, Apple lost its six-year court battle against Microsoft and its licensee Hewlett-Packard Co. when the United States Court of Appeals for the Ninth Circuit affirmed a lower court decision that Microsoft's Windows and Hewlett-Packard's New Wave did not infringe Apple's copyrights.

The court rejected Apple's claim that the overall -look and feel" of its Macintosh system-the design and use of its icons, windows, and visual displays-could be protected by copyright law. Instead, the court held that the copyright laws could not give Apple a monopoly on the idea of a GUI or a desktop metaphor, and that because Microsoft and Hewlett Packard's visual displays were not "virtually identical" to Apple's, there was no infringement.

Although the appellate court's decision largely turned on the fact that Apple had licensed Microsoft to use certain visual displays, it is an important decision for all software creators nonetheless. The decision supports standardization across competing products and greater opportunities for others to enter the field . As the lower court observed in a 1992 decision, Overly inclusive copyright protection can produce its own negative effects by inhibiting the adoption of compatible standards... Such standards in a graphical user interface would enlarge the market for computers by making it easier to learn how to use them."

Apple's Interface; Microsoft's Competing Entry

Apple did not invent the idea of using movable, overlapping windows and icons as a computer interface-its engineers had seen such features in use at Xerox's Palo Alto Research Center in 1979. The first desktop computers lacked the power to run GUls, and the MS-DOS operating system Microsoft wrote for the original IBM PC of the early 1980s was limited by the hardware to a character-based interface. Apple used a more powerful Motorola 68000 chip, which made it possible to use a GUI in a desktop computer. That launched the Macintosh to a good start in 1984, but as IBM and IBM compatible hardware improved, Microsoft was able to introduce Windows 1.0 in 1985 with its own GUI.

Apple claimed that Windows 1.0 infringed on its copyrighted visual displays, but in late 1985 the companies reached an agreement whereby Apple granted Microsoft a license to use the displays then existing in Windows 1.0. Yet when Microsoft released Windows 2.03, which was more "Mac-like" than Windows 1.0, Apple sued for copyright infringement.

What Copyright Law Does and Does Not Protect

Copyright law allows the owner certain "exclusive rights" for a fixed period of time (life plus 50 years for an individual 75 years for a corporation). These rights include the exclusive right to make copies, to make derivative works based on the original, to distribute copies to the public by sale, lease, or lending, and (for certain kinds of works, such as audiovisual works) to perform or display the work publicly.

Unlike patents, copyrights do not protect ideas, just the author's particular expression of those ideas. Thus one could make a movie about a child who befriends a visitor from space without violating the copyrights in the film E. T. - The Extraterrestrial, but it would be infringement to appropriate the aspects of the film original to its creators: the expression of that idea, in particular, dialogue, scenes, and characters. If aspects of the new film were "substantially similar" to the original material in E.T., the new film would infringe.

Sometimes an idea can only be expressed in a limited number of ways. When an idea and its expression are indistinguishable, they are said to be "merged." So as not to limit the range of ideas that an author may use, when the idea and its expression are merged, only virtually identical copying is prohibited-substantial similarity is not infringement.

Some forms of expression are standard or indispensable depictions that flow naturally from an idea, rather than from the author's creativity; for example, settlers circling their covered wagons when under attack. These are called scenes a faire, which copyright law allows anyone to use. In the software field, features that are necessary to conform to hardware specifications or other software are also considered scenes a faire. Still, works consisting only of unprotectable scenes a faire or public domain items can be protected for the creative way in which the items are selected, arranged, organized, or categorized. Such works are called "compilations," and the compiler may only have a copyright in the way the items are compiled, not in the items themselves.

Apple's Claim to "Look and Feel" Protection.

In the suit, Apple claimed that Microsoft's new versions of Windows were not permitted by the 1985 license, and that Microsoft illegally copied protected aspects of its work. Apple also sued Hewlett Packard, whose NewWave product used a similar GUI on license from Microsoft. Apple said that because its GUI was a dynamic audiovisual work, the "look and feel" of the product - the selection and arrangement of related images and their animation-should be compared with Windows and NewWave for similarity. Microsoft and Hewlett Packard disagreed, arguing that copyright infringement should be decided by comparing specific, protectable elements of the works. The appellate court rejected Apple's "look and feel" theory, and held that Apple could not get patent-like protection for the Idea of a GUI or a desktop metaphor. Instead, the court focused on the individual elements of the works, separating out the visual displays Apple had licensed to Microsoft and other images not protected by copyright.

Why The Court Ruled Against Apple

The court noted that the desktop metaphor comprised five ideas which anyone is free to use: (1) windows to display multiple images; (2) icons representing familiar items from the office environment; (4) use of menus to store information conveniently; and (5) opening and closing of objects to receive, transfer, or store data. A number of those ideas, the court noted, could only be expressed in a few ways; for example, it is hard to think of something other than an image of a page to express the idea of an icon representing a stored document. Similarly, hardware constraints limited the number of ways to depict moving a window across the screen; because having the whole window image move requires a lot of power, software creators had to rely on an outline of the window to show movement. Consistent with the doctrines of merger and scenes a faire, it was not illegal for Microsoft and Hewlett-Packard to use such images similar to Apple's.

Because all the features Apple claimed were copied were either covered by the license or uncopyrightable ideas, the court ruled that the only claim Apple could have would be for copying of its "unique selection and arrangement" of those features. But because compilations are entitled to less protection than completely original works, to prove infringement Apple would have had to show that Microsoft and Hewlett-Packard's works were "virtually identical" to its own. Apple did not dispute that those works were not virtually identical, and therefore Microsoft and Hewlett-Packard were not liable for copyright infringement.

What Apple Might Have Done Differently

Consider whether it would have been better for Apple back in l985 to have licensed its entire interface to Microsoft rather than just the visual displays that were included in Windows 1.0, and retain its claim of exclusivity. If Microsoft had received reasonable licensing terms from Apple, it would have been less motivated to create a new interface of its own. Instead of bringing and losing an expensive lawsuit, Apple might still be collecting royalties from Microsoft today.

Software developers need to consider whether the best strategy is to try to keep a monopoly over a new product, or license the technology to competitors. Timing is a key issue - if the property is licensed too early, the licenser runs the risk of losing out on the recognition that comes from exclusivity if licensed too late, the licensor could see the competition pass it by.

OCTOBER, 1994

This information is a general description of the law and is not intended to provide specific legal advice. If you have any questions, please feel free to contact one of our attorneys.

We would be pleased to discuss the Apple v. Microsoft decision, or any other aspect of copyright, trademark, or advertising law, with any of our clients and friends.

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