CITE: 12 USPQ.2D 1991
CMON: Sept 1989
PLAIN: Telemarketing Resources
DEFND: Symantec Corporation
COURT: District Court, Northern District of California 
DATE: Sept. 7, 1989

  Popular aspects of user interfaces (menu screens, menu bars, pull-down
  windows, color schemes) are not copyrightable.

JUDGE: AGUILAR, District Judge

The Court is called upon to decide whether the "look and feel" of the screen
displays in defendants' computer outlining program are substantially
dissimilar from plaintiffs' copyrighted program so as to justify a grant of
summary judgment. Towards this end, the Court must decide which elements of
the computer program are ideas and which are protected expressions.
In addition to the briefs and supplemental papers filed on the summary
judgment motion, the Court entertained an in-court demonstration of the two
programs and has carefully reviewed submitted copies of relevant outlining
programs. Good cause appearing there for, the Court HEREBY GRANTS the motion
for summary judgment for the reasons set out below.


A. Computer Outlining Programs
In 1983, Living Videotext, now a division of defendant Symantec, developed
one of the premier computer outlining programs -- "ThinkTank".  Like most
computer adaptations of everyday tasks, a computer outliner allows a user to
create, revise, expand and reorganize an outline more quickly and easily than
can be done on paper.  The program has two components -- the computer
code and the resulting displays on the computer screen.
Since 1983, Symantec has published several enhanced versions of ThinkTank
and a series of increasingly more powerful outlining programs -- "Ready!",
"More" and "Grandview".  The ThinkTank program was designed to run on IBM
compatible computers. The user interface features included menus listing
available commands and options, the ability to use function keys to perform
tasks, and to translate regular keys to function keys when in a special mode.
The "More" program was developed for Apple's Macintosh computer. The program
contained many of the distinctive graphical interface features associated with
Apple computer programs, and included pull down menus and both overlapping
and tiled windows. Defendants argue that menu names coined for MORE were
later included in Grandview.

"Grandview" is the latest computer outlining program offered by Symantec
and was developed by defendant John L. Friend. Friend's first computer
outlining program was PC-Outline, which he states was inspired by
ThinkTank. Friend, doing business as Softworks, sold PC-Outline to
plaintiff, Brown Bag Software.  Because at the time of the sale, Friend
was already working on the program which became Grandview, the Purchase
and Sale Agreement contained the following clause:
    Software warrants and represents that it is not currently developing
    any computer program which would infringe the copyright rights to be
    assigned to TRI pursuant to this Agreement.
In addition, Friend was granted the right to use "the non-application-specific
libraries and routines set forth in Exhibit C".  Exhibit C consists of 129
pages of source code. Defendant Friend argues that the features of Grandview
which plaintiff contends infringe the PC-Outline copyright were assigned to
Friend pursuant to the Purchase and Sale Agreement. The assigned source code
draws a menu bar at the top of the screen, draws the bar with one of the
options highlighted, which can then be pulled down into a menu. Other
routines draw the single line border around the menus and windows as well
as drawing the message line at the bottom of the screen.
When Symantec bought Friend's program, it required extensive reprogramming
and format changes, allegedly to bring the new program into line with More
and ThinkTank. The goal was to make Grandview appealable to users of More
and Thinktank.
Plaintiffs allege that Grandview is substantially similar to PC-Outline
and actually an infringing derivative work of the copyrighted program.
Defendants contend that the alleged infringing features are unprotected
ideas, not expressions.


A. Summary Judgment
The Court must review the copyright claims, in light of the summary judgment
attack, to determine whether plaintiffs have come forward "with specific
facts showing that there is a genuine issue of material fact" to support
the allegations of the complaint as to the defendants. Fed. R. Civ. P. 56(c);
Matsushita Electrical Industrial Co. v. Zenith Radio et al., 475 U.S. 574,
587, 106 S.Ct. 1348, 1356 (1986); Celotex v. Catrett, 477 U.S. 317, 106 S.Ct.
2548 (1986). There is no issue for trial unless there is sufficient evidence
favoring the plaintiffs for a jury to return a verdict for them.  Anderson
v. Liberty Lobby, 477 U.S. 242, 106 S.Ct 2505, 2516 (1986). "A party
opposing a properly supported motion for summary judgment may not rest
upon mere allegation or denials of his pleading, but must set forth
specific facts showing that there is a genuine issue for trial, supported
by evidentiary material beyond the pleadings.  Celotex, 477 U.S. at 324.
"If the evidence is merely colorable, or is not significantly probative,
summary judgment may be granted." Anderson 477 U. S. at 249-250 (cites
omitted). Plaintiff must meet his burden of proof in rebutting the
summary judgment motion.
"Because plaintiff bears the burden of proving that the works at issue are
substantially similar in a copyright infringement case, summary judgment for
defendant is appropriate when plaintiff fails to make a sufficient showing
that the ideas and expressive elements of the works are substantially
similar" Frybarger v. IBM Corp., 812 F. 2d 525, 528 (9th Cir. 1987).

B. Copyright Protection And Computer Programs

Copyright protection applies to the user interface, or overall structure and
organization of a computer program, including its audiovisual displays, or
screen "look and feel."  Whelan Associates, Inc. v. Jaslow Dental Laboratory,
Inc., 797 F. 2d 122, (3d Cir. 1986); Broderbund Software v. Unison World,
648 F. Supp. 1127 (N.D.Cal. 1986). {n1} In this case, defendants do not
contest the copyrightability of computer screens in general, but argue that
the functions which plaintiffs point to as evidence of copying are ideas
and hence not protected. In addition, John L. Friend asserts his license
to use the source code which generates the alleged similarities.
To prevail on a claim for copyright infringement, plaintiff must prove
ownership of the copyright and copying by the defendant. Copying by the
defendant, in turn, may be shown by circumstantial evidence of access to the
copyrighted work and substantial similarity between the copyrighted work,
PC-Outline, and the allegedly infringing work, Grandview. Sid & Marty Krofft
Television v. McDonald's Corp., 562 F. 2d 1157, 1162 (9th Cir. 1977); Baxter
v. MCA, Inc., 812 F. 2d 421, 423 (9th Cir. 1987), cert. denied U.S., 108 S.Ct.
346 (1987). In this case, there is no dispute over the copyright ownership
or access to PC-Outline. The only disputed issue is whether or not there is
substantial similarity in the expression of the idea of a computer
outlining program.
However, the classic distinction between an idea and an expression serves to
limit the scope of a copyright. "No one infringes, unless he descends so far
into what is concrete as to invade . . . [its] expression." Sid and Marty
Krofft, 562 F. 2d at 1163, citing National Comic Publications v. Fawcett
Publications, 191 F. 2d 594, 600 (2d Cir. 1951); See also Baker v. Selden,
101 U.S. 99, 103 (1879). In addition, the courts have developed what is
known as the merger doctrine, if an idea is indistinguishable or inseparable
from, or limited by, its expression, "copying the expression will not be
barred". Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F. 2d 738, 742
(9th Cir. 1971); Data East v. Epyx, 862 F. 2d at 208; Aliotti v. R. Dakin
& Co., 831 F. 2d 898 (9th Cir. 1987); NEC Corp. v. Intel Corp., 10 U.S.P.Q.2d
1177, 1179 (N.D.Cal 1989).  See also Morrisey v. Procter & Gamble Co.,
379 F. 2d 675 (1st Cir. 1967). {n2}
Furthermore, if the underlying idea is subject to a limited range of
expression, copyright protection would apply only "against virtually
identical copying".  Frybarger v. IBM, 812 F. 2d at 530; NEC v. Intel,
10 U.S.P.Q.2d at 1188.
Finally, copyright protection is not "afforded to elements of expression
that necessarily follow from an idea" and are "'as a practical matter,
indispensable or at least standard in the treatment of a given [idea].'"
Data East v. Epyx, 862 F. 2d at 208 (quoting Alioti, 831 F. 2d at 901).
Substantial similarity is established by first applying an "extrinsic" test
to determine whether two ideas are similar. "This is an objective test which
rests upon specific criteria that can be listed and analyzed." Data East v.
Epyx, 862 F. 2d at 208; Sid & Marty Krofft, 562 F. 2d at 1164. If the ideas
are similar, the expression of the idea is compared under an intrinsic,
subjective test "which depends on the response of the ordinary reasonable
person." Data East, 862 F. 2d at 208; Sid & Marty Krofft, 562 F. 2d at 1164.


The idea of a computer run outlining program is undisputedly identical in
both Grandview and PC-Outline. However, defendants also describe many of
the features which plaintiff seeks to protect as ideas inherent within a
computer outlining program.
Plaintiff asserts that the following aspects of Grandview's user interface
are substantially similar to PC-Outline. These similarities allegedly render
the total look and feel of the two programs substantially similar. {n3}
   a. Both present an opening menu labeled "OPENING MENU".
   b. Both opening menus are enclosed in a single line box and appear in
      contrasting color to the rest of the title screen.
   c. A reverse video cursor or "highlighting bar" appears over the options
      on both menus. The user moves the highlighting bar with the cursor
      arrows and presses the enter key to select an option.
   d. In both programs, as an alternative to using the highlighting bar,
      the user can select any option by hitting the capitalized letter
      for that option.
   e. Both opening menus have the same four options, although Grandview
      adds three more.
   f. Both programs permit a new outline to be begun from the opening menu.
      The user must enter a filename for the new outline and the program
      then displays a main editing screen.
   g. Both programs permit the selection of an existing outline. The outline
      list is pulled down and the user selects an outline with the arrow
      and enter keys.
   h. Both editing screens have file, cursor location and window information
      across the top of the screen. Both use pull down menus, and display
      a list of the available menus on a menu bar" across the top of the
      screen. A help line is on the bottom of the screen. Both programs
      have a line around the screen. Plaintiffs also assert similarities
      in the color scheme of the programs.
   i. The main editing screens are used to edit and enter new data in
      both programs.
   j. A new outline element is entered by pressing the enter key while
      holding down the control key in both programs. The new element may
      be dragged around if no text is added.
   k. Pull down menus are selected by first pressing a "menu attention"
      key.  (In Grandview, the default menu attention key is the f10 key,
      in PC-Outline either the insert or "/" key is used as the menu
      attention key.)
   l. Once the menu attention key is pressed, the initial letter of each
      of the menus is highlighted. The word MENU is also displayed at the
      right end of the menu bar.

   m. A menu is selected by either pressing the highlighted initial letter
      for the desired menu, or moving the cursor across the screen to the
      desired menu.  The menu is displayed in reverse video in a pull down
   n. The form of the menu window is the same in both programs, inasmuch
      as it is surrounded by a single line border with a reverse video
      highlighting bar which is moved up and down with the arrow keys.
      A highlighted option is selected by pressing the enter key.
      Alternatively, a user can select an option by typing the appropriate
      code letter, usually the first letter of the option. The codes are
      displayed at the left of the menu as single, uppercase letters.
   o. In both programs, certain of the commands displayed on the pull down
      menus may be directly selected from the main editing screen through
      the use of special combinations of keys.
   p. Both programs offer nine pull down menus. Of those nine, four of the
      menu description words are identical, the other five are different,
      but the functions are the same or similar.
   q. Finally, plaintiffs note that "virtually every function performed by
      PC-Outline is also performed by Grandview."

"Analytic dissection" of plaintiffs' alleged similarities may be performed to
determine if the similarities result from unprotectable expression.  Data
East, 862 F. 2d at 208; Aliotti v. R. Dakin, 831 F. 2d at 900-901.
Inherent in the idea of an outlining program is the need to access existing
files, edit the work, and print the work. These concepts are fundamental to a
host of computer programs. Nevertheless, plaintiffs assert that the presence
of these four options in the menu screen demonstrates substantial similarity
of expression. This expression is unprotectable.
Plaintiff similarly asserts that the nine functions listed in the menu bar,
and virtually all of the functions of the PC-Outline program, can be performed
by Grandview, even though they may be called something different and accessed
differently. However, these functions constitute the idea of the outlining
program, for example, Grandview has a "Reorganize" menu and PC-Outline has
an "Outline" menu. Both menus perform similar functions associated with
reorganizing the outline. In addition, PC-Outline allows you to delete
and create new entries when in the "Outline" menu. As a comparison,
Grandview offers four move functions compared to the single move function
available in this menu on PC-Outline.
A review of the various nine menus available in each of the programs leads to
the conclusion that the features/functions on PC-Outline and Grandview are
similar in their essence, but quite different in their complementary features.
The expression of the ideas inherent in the features are accordingly distinct.
Apparently, plaintiff is also asserting the use of pull down windows as
a similarity. This idea is employed in a number of computer programs,
including MORE! and ThinkTank. Plaintiffs may not claim copyright protection
of an idea and expression that is, if not standard, then commonplace in
the computer software industry. Plaintiff's copyright validly covers only
"original works of authorship".  17 U.S.C. 102(a); Roth Greeting Cards v.
United Card Co., 429 F. 2d 1106 (9th Cir. 1970). Originality, although not
defined by statute, requires independent creation, it means "only that the
work owes its origin to the author, i.e. is independently created." Nimmer
on Copyright, 2-8.1 Sect. 2.01[A]. Although a presumption of originality
attaches to a valid copyright registration, defendants have rebutted this
presumption in this case. John L. Friend testified that he based his
PC-Outline on ThinkTank. In light of the use of pull-down's in previous
programs, plaintiff has failed to show that the pull down windows were
original and independently created for PC-Outline.
In addition, the pull down windows look different. The lists in each menu are
different. Although the two programs share the use of letter abbreviations
as a means of selecting the desired option. The wording describing the
functions are dissimilar.
Plaintiff cites the similarity of using the main editing screen to enter
and edit data. The need to have a screen from which a user can perform
editing functions is essential to the very idea of a computer outline
program. BrownBag points to the expression of that concept as similar
inasmuch as the color shading is identical. Plaintiff admits that fewer
than 10 of the 44 default color selections in the Grandview program are
the same as the default color selections in the PC-Outline program.
Nevertheless, plaintiff asserts that the choice of the blue background
infringes on the PC-Outline copyright. Defendant submitted declarations
from an expert describing the functional role of the blue background
"relating to the physiology of the human eye, the characteristics of
computer video displays and the connotations of the color blue for
financial and corporate institutions".  The Rules of the Copyright Office
also specifically exclude from copyright registration "typographic
ornamentation, lettering or coloring".  37 C.F.R. 202.1 Finally, the
limited number of background colors for computer programs precludes
copyright protection for such choices.  United States v. Hamilton,
583 F. 2d 448, 451 (9th Cir. 1978).
The Court finds that it is unnecessary to review the alleged similarities
in the drawing of the menu bar, the use of highlighting bars and the use
of a single line box around the menus because these features are covered
in the license agreement between plaintiff and John L. Friend.
The Court's "analytic dissection" of plaintiff's alleged similarities shows
that the majority of the alleged similarities pertain to features that are
not protected under the copyright. However, plaintiff also spent considerable
time pointing out the similarities between the two programs' opening menus,
beginning with the title, "opening menu".  The use of an opening menu, named
an opening menu, is itself an idea and not protectable. Nevertheless, once
the ideas are found to be similar, the Court must review the expression of
that idea on the screen.
At first glance, the screen's announcements are quite distinct. Grandview's
name is portrayed in large, block letters at the top of the screen. "Welcome
to PC-Outline" is modestly placed at the top of plaintiff's program. The
list of the opening menu options are quite distinct. Grandview offers seven
options, PC-Outline offers four. Some of the functions are the same, opening
or starting a new outline, accessing an existing outline, accessing the
directory and quitting the program altogether. Nevertheless, these functions
are inherent in the idea of a computer outlining program and are not
protected under the copyright. The description of these functions is
different. Additionally, Grandview allows the user to access the functions
by hitting a key letter or by highlighting the function.
The Court may issue summary judgment on the issue of substantial similarity
if it finds that no reasonable jury could find "substantial similarity of both
ideas and expression between the works at issue".  Aliotti, 831 F.2d at 900.
The two screens share the same idea, they are used to access the the various
functions initially available to the user. However, the expression of the
two screens are not substantially similar, as a matter of law. In addition,
many of the expressions which plaintiff argues are substantially similar are
either not protected under the copyright or were licensed to Mr. Friend.
Good cause appearing there for, the Court HEREBY GRANTS the motion for
summary judgment.


Plaintiff has presented the Court with a computer software program designed
to facilitate the creation and editing of outlines. The allegedly infringing
work encompasses the same idea and performs the same general functions as
plaintiff's PC-Outline. Plaintiff has provided the Court with a list of
similarities between the two programs which allegedly render the look and
feel of defendant's Grandview program substantially similar to PC-Outline.
Inasmuch as plaintiff refers to the use of similar functions, the use of a
main editing screen, a menu bar, pull-down windows and the color scheme of
the programs, these features are unprotectable under the copyright laws or
are licensed to John L. Friend pursuant to the written contract. Plaintiff
may not rely on these features in proving its case at trial.
Plaintiff also claims that the look and feel of the opening screens are
substantially similar in the two programs. After redacting that material
which is not protected under the copyright, or which has been licensed to
Mr. Friend, the Court performed the required extrinsic and intrinsic tests
mandated by law.  The Court finds that although the opening screens share
similar ideas, the screens are, as a matter of law, not substantially
similar. Plaintiff has failed to meet its evidentiary proof on this matter.
No reasonable jury could find that the screens are substantially similar.
Good cause appearing there for, the Court GRANTS the motion for summary

DATED: September 6, 1989
JUDGMENT - September 7, 1989, Filed
Pursuant to its Order Granting Summary Judgment and its Order Dismissing
State Law Claims, Judgment is HEREBY ENTERED for defendants.
DATED: September 6, 1989
On August 23, 1989, the Court granted defendant's motion for summary judgment
on the federal copyright claims. The only remaining claims are state law
claims which depend on the federal copyright claim. The Court will not
exercise its pendent jurisdiction over those state claims. Good cause
appearing therefor, the Court HEREBY DISMISSES the pendent state law
claims, without prejudice.
DATED: September 6, 1989


{n1} Computer generated screens for video games were found copyrightable as
audiovisual works in Kramer Mfg. Co. v. Andrews, 783 F. 2d 421 (4th Cir.
1986) and Williams Electronics v. Artic International, 685 F. 2d 870
(3d Cir. 1982). Digital Communications v. Softklone Dist., 659 F. Supp. 449
(N.D.Ga. 1987) decided that a status screen for a computer program was
subject to copyright protection as a compilation.

{n2} In NEC v. Intel, Judge Grey held that the issue of merger and the
relationship between idea and expression applies to the issue of
infringement rather than copyrightability.

{n3} The list of alleged similarities is drawn from the declaration of Mr.
Ronald Ogg and plaintiff's memorandum of points and authorities. Defendants
object to the submission of Mr. Ogg's declaration. Mr. Ogg's declaration,
which contains expert opinion as to the similarity of the two programs,
will not be considered by the Court. Nevertheless, the Court is using the
list as a tool to organize the features which plaintiff asserts are
substantially similar in the two programs. In any event, the programs
themselves supersede and control any contrary opinion, allegations or
descriptions submitted by the parties. See Nimmer On Copyright, 12-73 Sect.
12.10; Decorative Aides Corp. Staple Sewing Aides Corp, 497 F. Supp. 154
(S.D.N.Y. 1980).