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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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