The Journal of Business, Entrepreneurship The Journal of Business, Entrepreneurship
& the Law & the Law
Volume 12 Issue 2 Article 2
5-15-2019
Copyrighting Experiences: How Copyright Law Applies to Virtual Copyrighting Experiences: How Copyright Law Applies to Virtual
Reality Programs Reality Programs
Alexis Dunne
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Recommended Citation Recommended Citation
Alexis Dunne,
Copyrighting Experiences: How Copyright Law Applies to Virtual Reality Programs
, 12 J.
Bus. Entrepreneurship & L. 329 (2019)
Available at:
https://digitalcommons.pepperdine.edu/jbel/vol12/iss2/2
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COPYRIGHTING EXPERIENCES: HOW
COPYRIGHT LAW APPLIES TO VIRTUAL
REALITY PROGRAMS
Alexis Dunne*
INTRODUCTION .......................................................................... 330
I. WHAT IS VR? ..................................................................... 334
A. The Reality-Virtuality Continuum ...................... 335
B. The Key Elements of Virtual Reality .................. 336
i. The Virtual World ................................. 336
ii. Sensory Feedback and Interaction .......... 336
iii. Immersion ............................................. 337
C. The Hardware & Software of VR ....................... 338
II. COPYRIGHT LAW & THE COPYRIGHTABILITY OF COMPUTER
PROGRAMS ......................................................................... 339
A. Copyright Law Can Change .............................. 340
B. Subject Matter Evolution ................................... 341
C. History of the Copyrightability of Computer
Programs .......................................................... 341
III. PROTECTING COMPUTER PROGRAMS AND
VIRTUAL REALITY EXPERIENCES AS A LITERARY WORKS .... 342
A. Protecting the Literal Code ............................... 343
i. Basic Computer Program Concepts........ 343
ii. Protection for Both Source Code & Object
Code ...................................................... 344
iii. Applicability to VR ............................... 345
B. Protecting the Non-Literal Elements ................. 345
i. Early & Broad Protection of Non-Literal
Elements ................................................ 346
ii. Limiting the Protection of Non-Literal
Elements ................................................ 346
iii. Applicability to VR ............................... 349
IV. PROTECTING COMPUTER PROGRAMS AND VIRTUAL REALITY
EXPERIENCES AS AUDIO-VISUAL WORKS ............................ 350
A. VR Video Games ............................................... 351
i. Stern Electronics v. Kaufman ................ 351
ii. VR Application ..................................... 352
BUSINESS, ENTREPRENEURSHIP & THE LAW VOL. XII:II
330
B. VR User Interfaces ............................................ 353
i. Apple v. Microsoft................................. 353
ii. VR Application ..................................... 355
iii. Useful Articles....................................... 357
CONCLUSION ............................................................................. 359
INTRODUCTION
“The future is exciting, but uncertain.”
1
Some predict that virtual
reality will fundamentally change the future of the entertainment industry,
2
while others believe it will remain “stuck in neutral.”
3
Some say virtual
reality will isolate us from each other.
4
Others say virtual reality will bring
us together.
5
Some say virtual reality will make us inactive.
6
Others say
virtual reality will inspire activity.
7
Critics and champions of virtual reality (VR) may disagree on
what impact it will have on humanity, but one thing for sure: it is
*J.D. Pepperdine University School of Law 2019
1
Steven Ornes, Everything Worth Knowing About... Virtual Reality,
DISCOVER MAGAZINE (June 12, 2017), http://discovermagazine.com/2017/jul-
aug/virtual-reality.
2
Simon Erickson, Is There a Future for Virtual Reality?, THE MOTLEY
FOOL (Nov. 25, 2017, 10:34 AM),
https://www.fool.com/investing/2017/11/25/is-there-a-future-for-virtual-
reality.aspx.
3
Id.
4
Ornes, supra note 1.
5
Id.
6
Id.
7
“VR has seen use in training surgeons, fighter pilots, and construction
workers. Today, it is also used to push our professional athletes to the furthest
heights of excellence. Virtual reality firm EON Sports specializes in creating
virtual training environments for athletes. Using both commercially available and
custom-designed head-mounted displays, Eon places athletes on the field
virtually.” How Reality Technology is Used in Business, REALITY TECHNOLOGIES,
http://www.realitytechnologies.com/sports (last visited Feb. 17, 2018).
2019 COPYRIGHTING EXPERIENCES
331
coming.
8
And while it may only change the way we catch Pokémon,
9
it
could also change the entire way we communicate with each other,
10
watch
8
Ian Sherr, VR promised us the future. Too bad we’re stuck in the
present, CNET (Oct. 10, 2017, 12:14 PM), https://www.cnet.com/news/vr-
virtual-reality-future-depends-on-you-buying-a-dorky-headset-oculus-
zuckerberg-playstation-vive/ (quoting Mark Zuckerburg saying “[t]he future is
coming”).
9
See THE POKEMON COMPANY INTERNATIONAL, INC.,
https://www.pokemongo.com (last visited Jan. 17, 2018)
10
“As we continue to make big breakthroughs in the technology behind
VR, we’re also investing in efforts to explore immersive new VR experiences that
will help people connect and share.” “In the future, VR will enable even more
types of connection — like the ability for friends who live in different parts of the
world to spend time together and feel like they’re really there with each other.”
New Steps Toward the Future of Virtual Reality, FACEBOOK NEWSROOM (Feb. 21,
2016), https://newsroom.fb.com/news/2016/02/new-steps-toward-the-future-of-
virtual-reality/.
BUSINESS, ENTREPRENEURSHIP & THE LAW VOL. XII:II
332
movies,
11
learn,
12
train,
13
work,
14
play,
15
create,
16
exercise,
17
behave,
18
experience.
19
11
See THE VR CINEMA, https://thevrcinema.com (last visited Feb. 27,
2018).
12
“Educators and students alike are seeking an ever-
expanding immersive landscape, where students engage with teachers and each
other in transformative experiences through a wide spectrum of interactive
resources.” Elizabeth Reede, When Virtual Reality Meets Education,
TECHCRUNCH (Jan. 23, 2016), https://techcrunch.com/2016/01/23/when-virtual-
reality-meets-education/; See also Learn and Train with Virtual Reality,
UNIMERSIV, https://unimersiv.com.
13
Learn and Train with Virtual Reality, UNIMERSIV,
https://unimersiv.com.
14
“[M[any of the world's largest multinational corporations are already
integrating virtual reality technologies into their businesses.” How Reality
Technology is Used in Business, REALITY TECHNOLOGIES,
http://www.realitytechnologies.com/business (last visited Feb. 27, 2017).
15
See OCULUS, https://www.oculus.com/rift/#oui-csl-rift-games=robo-
recall (last visited January 17, 2018); VIVE, https://www.vive.com/us/ (last visited
January 17, 2018); PLAY STATION, https://www.playstation.com/en-
us/explore/playstation-vr/ (last visited Jan. 17, 2018).
16
“From architecture to interior home design, VR and related
technologies are changing the way we create the places we work, live, and play.”
How Reality technology is Being Used in Design, REALTY TECHNOLOGIES,
http://www.realitytechnologies.com/design (last visited Feb. 26, 2018); See also
TILT Brush, https://www.tiltbrush.com (last visited Jan. 17, 2018).
17
Kyle Melnick, Mayweather Boxing & Fitness VR Program Debuts At
First Gym This Month, VR SCOUT (Jan. 11, 2018),
https://vrscout.com/news/mayweather-boxing-fitness-vr-program-gym/#.
18
“Virtual reality therapy isn’t a new idea, and the concept far predates
the modern easy availability of head-mounted displays. The concept was
pioneered in 1992 in the doctoral dissertation of Dr. Max North, a computer
scientist. His thesis was that virtual reality was an ideal, safe place to administer
psychotherapy through exposure to various phobias and triggers.” How Reality
Technology is Used in Therapy, REALITY TECHNOLOGIES,
http://www.realitytechnologies.com/therapy (last visited Feb. 26, 2018).
19
“Whatever the industry, VR is largely about providing
understanding—whether that is understanding an entertaining story, learning an
abstract concept, or practicing a real skill. Actively using more of the human
sensory capability and motor skills has been known to increase sensory bandwidth
between human and information, but there is much more to understanding.
Actively participating in an action, making concepts intuitive, encouraging
motivation through engaging experiences, and the thoughts inside one’s head all
contribute to understanding.” Jason Jerald, THE VR BOOK 9 (M. Tamer Özsu et
2019 COPYRIGHTING EXPERIENCES
333
The enormous potential of VR has attracted developers, investors,
and users.
20
On the investor side, Digi-Capital reported in July 2017 that
in the prior twelve months, investment in Augmented Reality (AR) and
VR sectors reached over $2 billion.
21
On the user side, [c]onsumers will spend $5.1 billion on virtual
reality gaming hardware, accessories and software in 2016. That’s up from
the $660 million spent in 2015, says the marketing leader. Meanwhile, the
global market is expected to grow to $8.9 billion in 2017 and $12.3 billion
in 2018,
22
and Brendan Iribe, CEO of Oculus, and Mark Zuckerburg, CEO
of Facebook, claim there will someday be a billion or more VR users.
23
So, there is money, passion, and optimism surrounding VR, but is
there protection for the VR software? With new kinds of intellectual
property comes questions of intellectual property protection, and it is
unclear exactly how VR’s various aspects will be protected. Patents will
presumably protect the hardware, the physical computer components, of
VR,
24
but it is less clear which kind regime of intellectual property will
protect the underlying software or the experiences themselves. Because
VR is a computer-generated environment,
25
and copyright law is the
al. eds., 2016).
20
“The recent surge in media coverage about VR has inspired the public
to become quite excited about its potential.” Id.
21
AR/VR Dealmakers invested over $800M in Q2 2017, DIGI-CAPITAL
(July 2017), http://www.digi-capital.com/news/2017/07/arvr-dealmakers-
invested-over-800m-in-q2-2017/#.Wl_K-CPMzOS.
22
John Gaudiosi, Virtual Reality Video Game Industry to Generate $5.1
Billion in 2016, FORTUNE, http://fortune.com/2016/01/05/virtual-reality-game-
industry-to-generate-billions/ (last visited Mar. 5, 2018).
23
Jerald, supra note 19, at 474.
24
“Oculus VR has been assigned at least one utility patent from the U.S.
Patent and Trademark Office to protect its headset-based virtual reality
technologies. A problem in video playback where the display sometimes pans
further right or left than a wearer’s head is turning is addressed by the invention
protected by U.S. Patent No. 9063330, entitled Perception Based Predictive
Tracking for Head Mounted Displays.” William Cory Spence, Oculus Rift Patents
that chance the Virtual Reality Landscape, IP WATCHDOG (May 31, 2016),
http://www.ipwatchdog.com/2016/05/31/oculus-rift-patents-virtual-
reality/id=69483/.
25
“[Merriam-Webster 2015] has more recently defined the full term
virtual reality to be ‘an artificial environment which is experienced through
sensory stimuli (as sights and sounds) provided by a computer and in which one’s
actions partially determine what happens in the environment.’ In this book, virtual
reality is defined to be a computer-generated digital environment that can be
experienced and interacted with as if that environment were real.” Jerald, supra
note 19, at 9.
BUSINESS, ENTREPRENEURSHIP & THE LAW VOL. XII:II
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typical avenue of protection for computer programs, developers of VR
software will likely look to Copyright Law for protection. Not only is it an
open question whether or not the protection of VR software will differ
from that of traditional software, it remains an open question exactly what
scope of protection copyright law affords traditional computer programs.
This note will attempt to shed light on the question of what kind
of protection copyright law affords VR experiences. Part II discusses the
nature of VR experiences and their implementation through specifically
tailored VR technology. Part III provides an overview of copyright
protection, its limitations, and specifically the history of the
copyrightability of computer programs. Parts IV and V outline case law
relevant to the discussion of the copyrightability of different types of VR
experiences and how that case law similarly or dissimilarly apply to the
protection of VR experiences. Part IV focuses on protecting VR
experiences as a literary work, through its underlying code and Part V will
focus on protecting VR experiences as audiovisual works, through its
visual outputs. Part VI discusses a potential avenue for obtaining copyright
protection through the useful article doctrine, while avoiding some of the
major roadblocks to copyright protection that discussed in the previous
sections. Finally, Part VII provides a summary and conclusion of the
current state of protection for the elements which make up VR experiences
as well as suggestions for how VR developers may want to proceed in
order to obtain the largest scope of protection for their works.
I. WHAT IS VR?
Merriam-Webster 2015 defines virtual reality as “an artificial
environment which is experienced through sensory stimuli (such as sights
and sounds) provided by a computer and in which one’s actions partially
determine what happens in the environment.”
26
More generally, VR is
“computer-generated digital environment that can be experienced and
interacted with as if that environment were real.”
27
26
Id.
27
Id.
2019 COPYRIGHTING EXPERIENCES
335
A. The Reality-Virtuality Continuum
VR is technically one of many phenomena that exist on the
spectrum of mixed reality (MR).
28
Paul Milgram, Haruo Takemura, Akira
Utsumi, and Fumio Kishino introduced the concept of this “mixed reality
spectrum,” referred to as the “Reality-Virtuality (RV) Continuum,” in
their often-cited paper, Augmented Reality: A class of displays on the
reality-virtuality continuum, where they dissected and classified the
various MR technologies.
29
Figure 2: Simplified Representation of a VR Continuum
30
The RV Continuum consists of realities which incorporate both
real world and virtual elements in varying degrees and ranges from the real
world (with zero virtual components) at one end to a fully immersive
virtual environment at the other end.
31
Between these ends lies the
“substratum” consisting of Augmented Reality (AR) and Augmented
Virtuality (AV), where an AR environment is “principally real, with added
computer[-]generated enhancements” and an AV environment is
“principally virtual, but augmented through the use of real (i.e.
28
“Reality takes many forms and can be considered to range on a
virtuality continuum from the real environment to virtual environments . . . . These
forms, which are somewhere between virtual and augmented reality, are broadly
defined as ‘mixed reality,’ which can be further broken down into ‘augmented
reality’ and ‘augmented virtuality.’” Jerald, supra note 19, at 9.
29
Fumio Kishino, Paul Milgram, Haruo Takemura, & Akira Utsumi,
Augmented Reality: A class of displays on the reality-virtuality continuum, Proc.
SPIE 2351 TELEMANIPULATOR AND TELEPRESENCE TECHNOLOGIES 282 (Dec. 21,
1995),
http://etclab.mie.utoronto.ca/publication/1994/Milgram_Takemura_SPIE1994.p
df
30
Id. at 283.
31
Id.
BUSINESS, ENTREPRENEURSHIP & THE LAW VOL. XII:II
336
unmodelled) imaging data.”
32
Simply put, the RV Continuum ranges from
actual reality to virtual reality.
33
Because of the colloquial use of the term and the lack of necessity
in distinguishing the different realities for the purposes of this note, this
note will use the term “VR” to refer generally to any reality on the RV
Continuum (excluding actual reality without any virtual components),
unless explicitly noted.
B. The Key Elements of Virtual Reality
VR experiences differ from traditional computer-generated
experiences in a variety of ways. Key elements that define and shape a
given VR experience include its virtual world, sensory feedback and
interactivity, and immersion.
i. The Virtual World
The virtual world is the computer-generated, three-dimensional
environment that the user perceives around her in that VR experience.
34
The virtual world is similar to a computer screen display, except that
traditional computer screen displays are two-dimensional and spatially
confined, whereas virtual worlds are three-dimensional and spatially
unrestricted (in the sense that the user perceives it in every direction,
everywhere around her). Within the virtual world, there may exist virtual
objects, which the user can interact with.
ii. Sensory Feedback and Interaction
Sensory feedback involves the stimulation of senses, such as
vision and hearing.
35
The software and hardware of a VR experience will
aim to properly stimulate these senses, in a way that mimics how the user’s
senses are stimulated in a real-world environment.
36
This process of
32
Id. at 285.
33
The Ultimate Guide to Mixed Reality (MR) Technology, REALITY
TECHNOLOGIES, http://www.realitytechnologies.com/mixed-reality (last visited
Feb. 27, 2018).
34
Id.
35
Id.
36
Id.
2019 COPYRIGHTING EXPERIENCES
337
providing feedback based on the user’s actions accomplishes the important
element of interactivity.
Hardware and software must track the user’s movements, such as
head movements or motion tracking, so that it can provide the proper
visual, aural, or other output. Tracking this correctly and providing the
properly calibrated outputs is integral for purposes of increasing
immersion and avoiding motion sickness. Beyond the visual and auditory
sensations, VR can incorporate other senses, such as taste, smell, and
tactile sensations, further immersing the user in the virtual experience.
37
For example, creating the sensation of “touching” a virtual object
is made possible through the use of “haptics.” “Haptics are artificial forces
between virtual objects and the user’s body.”
38
Tactile haptics, for
example, “provide a sense of touch through the skin”: one example of this
is Reactive Grip technology, which “utilizes sliding skin-contact plates
that can be added to any hand-held controller,” to imitate real world forces.
39
iii. Immersion
Each of these elements together provide the user with the
experience of immersion, the perception of being physically present in a
non-physical world.
40
An ideal VR experience is nearly indistinguishable from the real
world. In the 1960s, Ivan Sutherland, one of first VR creators, described
the ideal VR as “a room within which the computer can control the
existence of matter. A chair displayed in such a room would be good
enough to sit in. Handcuffs displayed in such a room would be confining,
and a bullet displayed in such a room would be fatal.”
41
This is a standard
that is not currently possible,
42
but it is important to keep in mind when
considering the types of programs that may be developed in the future, and
what challenges with protection developers may eventually run into.
37
Jerald, supra note 19, at 42.
38
Id. at 37.
39
Id. at 37–38
40
The Ultimate Guide to Virtual Reality (VR) Technology, supra note
33.
41
“Perhaps the most graphic, well-known, and advanced example of this
is the 'holodeck' in Star Trek: The Next Generation, in which the user is immersed
in an environment which, for all intents and purposes, is real . . . it represents a
future ideal of virtual reality's potential.” Jack Russo & Michael Risch, The Law
of Virtual Reality, COMPUTERLAW GROUP LLP,
http://www.computerlaw.com/Articles/The-Law-of-Virtual-Reality.shtml.
42
Jerald, supra note 19, at 9.
BUSINESS, ENTREPRENEURSHIP & THE LAW VOL. XII:II
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C. The Hardware & Software of VR
The previous section discussed the experience of VR. The other
side to VR is the hardware and software that actually generate the user
experience.
On the hardware side, a VR experience will generally require a
high-performance computer
43
and hardware that generates the visual
display, which typically takes the form of a head set. These headsets
provide what are referred to as “head-mounted displays” (HMDs).
44
These
HMDs are “more or less rigidly attached to the head.”
45
In a fully
immersive VR experience, the HMDs will block off the user’s vision to
the real world around her, and in its place, the HMD will project the
computer-generated reality.
The software component of VR is the program that instructs the
HMD. The software is “the computer code that creates virtual
environments, the audiovisual presentation to the user, the interactive
media including tactile components of the environment which are
experienced by the user, as well as video recordings of audiovisual
components to be played on a standard television or movie screen.”
46
This
computer software is the expression that copyright law would potentially
protect.
47
43
Russo & Risch, supra note 41. “Virtual reality environments, such as
rooms, cities, or entire worlds are created by computer software executing on
high-performance computer hardware.” Id.
44
Jerald, supra note 19, at 32.
45
Id.
46
Russo & Risch, supra note 41.
47
“Generally, existing statutory and case law will readily extend
protection to virtual worlds and even to particular original virtual objects, but the
very nature of virtual reality requires that subsequent participants be allowed
greater freedom to adapt, modify and extend existing virtual worlds and existing
virtual objects without liability for infringement except in the cases where (1)
strikingly similar or nearly identical copying occurs for virtual worlds and virtual
objects that simulate the real world and real objects or (2) substantial similarity
exists for unique virtual worlds and unique virtual objects.” Id.
2019 COPYRIGHTING EXPERIENCES
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II. COPYRIGHT LAW & THE COPYRIGHTABILITY OF COMPUTER
PROGRAMS
The source of Congress’s ability to grant copyrights to authors of
copyrightable works through the Copyright Act is found in Article 1,
Section 8, Clause 8 of the United States Constitution.
48
It grants Congress
the power “[t]o promote the progress of science and useful arts, by
securing for limited times to authors and inventors the exclusive right to
their respective writings and discoveries.”
49
This clause articulates the
purpose and method of granting copyrights.
50
The purpose is to “promote
the progress of . . . the useful arts,” which, in other words, is to incentivize
authors to create works of art.
51
Congress can incentivize authors by
“securing for limited times to authors . . . the exclusive right to their
respective writings,” which grants the author with a temporary monopoly
over his or her work of authorship.
52
A balance must be struck, however, between the breadth of these
monopolies and the public’s ability to use and enjoy those things which
should remain in the public domain for all to use; “[a]ny legislature has
only two basic considerations in designing a copyright law to provide
incentives: the breadth or scope of protection, and its length. Increasing
either one increases the opportunity for profit but also imposes a greater
cost on the public. There exists a tradeoff between these two dimensions:
the more there is of one, the less there needs to be of the other.”
53
Thus,
the Copyright Act articulates limitations on the proper subject matter of
copyrightable works.
54
The Copyright Act notes in the first Chapter that:
“In no case does copyright protection for an original work of authorship
extend to any idea, procedure, process, system, method of operation,
concept, principle, or discovery, regardless of the form in which it is
described, explained, illustrated, or embodied in such work.”
55
This
limitation, which is referred to as the idea-expression dichotomy, stands
48
U.S. Const. art 1, § 8, cl. 8.
49
Id.
50
Id.
51
Id.
52
Id.
53
FINAL REPORT 126, 292–93 (National Commission on New
Technological Uses of Copyrighted Works ed., 1978), http://digital-law-
online.info/CONTU/PDF/AppendixH.pdf.
54
Id.
55
17 U.S.C. § 102 (2016).
BUSINESS, ENTREPRENEURSHIP & THE LAW VOL. XII:II
340
for the rule that ideas cannot be copyrighted, but the expression of those
ideas can.
56
A closely related concept to the exclusions outlined in §102(b) is
the merger doctrine. While expression of an idea is copyrightable, it is
possible that in a particular circumstance the expression will “merge” with
the idea into an uncopyrightable whole.
57
This occurs when “only one of
a limited number of ways exist to express an idea.”
58
In such a
circumstance, the idea and the expression become indistinguishable from
each other, and the expression, like the idea, becomes uncopyrightable.
59
Also related is the doctrine of scenes á faire.
60
Under this doctrine,
when features in a given work are “indispensable, or at least standard, in
the treatment of a given idea, they are treated like ideas and are therefore
not protected by copyright.”
61
Each of these limitations to copyrightability, including the
exclusions outlined in §102(b), the merger doctrine, and the doctrine of
scenes á faire, play large roles in the case law concerning the scope of
copyright protection of computer software, and will be discussed in more
detail in Part IV and V.
A. Copyright Law Can Change
Technological advances often provide authors with novel avenues
of expression and unprecedented mediums in which they can manifest
art.
62
“Furthermore, the House Report suggests that the subject matter of
copyright may be expanded to include ‘those in which “scientific
discoveries and technological developments have made possible new
forms of creative expression that never existed before,” and those “in
existence for generation or centuries [but that] have only gradually come
to be recognized as creative and worthy of protection.”’’
63
The presence
56
Stephen M. McJohn, COPYRIGHT: EXAMPLES AND EXPLANATION 103
(2006).
57
Apple Computer, Inc. v. Microsoft Corp., 35 F.3d 1435, 1444 (9th Cir.
1994).
58
Id.
59
Id.
60
Id.
61
Id.
62
Ellii Cho, Copyright of Trade Dress? Toward IP Protection of
Multisensory Effect Designs for Immersive Virtual Environments, 33 CARDOZO
ARTS & ENT. L.J. 801, 816 (2015).
63
Id.
2019 COPYRIGHTING EXPERIENCES
341
of one of these technological advances coupled with the limitations on
copyrightable subject matter begs the question: is the new medium of
expression created by this new technology “a natural extension of works
now protected by the [Copyright] Act or is it completely outside
congressional intent?”
64
VR presents an example of one of these technologies. Through
VR and its corresponding computer software, authors can create virtual
worlds, experiences, objects, and interfaces, which represent a new kind
of artistic expression, and it is unclear exactly what scope of protection
Congress will afford to these virtual realities.
65
B. Subject Matter Evolution
The Copyright Act protects “original works of authorship fixed in
any tangible medium of expression now known or later developed, from
which they can be perceived, reproduced, or otherwise communicated,
either directly or with the aid of a machine or device.”
66
Following this
general statement of copyrightable subject matter, Congress lists eight
broad categories which serve as examples of copyrightable works.
67
This
list, however, is not exhaustive
68
and “the Copyright Act and its legislative
history reflect foresight and intent to expand the scope of copyrightable
subject matter to accommodate future technological advances as well as to
avoid absolute preclusion of materials that previously considered
unsuitable for copyright.”
69
For example, Congress added “designs, prints,
etchings and engraving in 1802, ‘musical composition’ in 1831, ‘dramatic
composition’ in 1856, ‘photographs and the negatives thereof’ in 1865,
and ‘statuary’ and ‘models or designs intended to be perfected as works of
fine arts’ in 1870.”
70
C. History of the Copyrightability of Computer Programs
Another example of this kind of accommodation occurred in 1980,
when Congress added the definition of a computer program to the
Copyright Act, after the Commission On New Technological Uses of
64
Greg S. Weber, The New Medium of Expression: Introducing Virtual
Reality and Anticipating Copyright Issues, 12 COMPUTER/L.J. 175, 187 (1993).
65
Russo & Risch, supra note 41.
66
17 U.S.C. § 102.
67
Id.
68
Cho, supra note 62.
69
Id. at 815–16.
70
Lotus Dev. Corp. v. Paperback Software Intern., 740 F. Supp. 37, 47
(D. Mass. 1990).
BUSINESS, ENTREPRENEURSHIP & THE LAW VOL. XII:II
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Copyrighted Works (CONTU) issued its final report.
71
In 1974, the 93rd
Congress recognized that certain problems raised by computer and other
new technologies were not adequately addressed in the pending bill (which
would become the Copyright Act of 1976).
72
To deal with these problems,
they established the CONTU to study the nature of computer programs, as
they related to copyright law, and to make recommendations as to changes
in the law.
73
CONTU’s findings emphasized a need for copyright protection of
the creative expression embodied in computer programs.
74
Accordingly,
in 1980, Congress added the definition for computer programs: “a set of
statements or instructions to be used directly or indirectly in a computer in
order to bring about a certain result.”
75
Since this addition, “computer
programs have been considered ‘literary works’ under the Copyright
Act.”
76
III. PROTECTING COMPUTER PROGRAMS AND
VIRTUAL REALITY EXPERIENCES AS A LITERARY WORKS
“Literary Works” are the first example listed in the Copyright
Act’s list of works of authorship, and thus are undoubtedly eligible for
copyright protection.
77
The Copyright Act defines a literary work as
“works, other than audiovisual works, expressed in words, numbers, or
other verbal or numerical symbols or indicia, regardless of the nature of
the material objects, such as books, periodicals, manuscripts,
phonorecords, film, tapes, disks, or cards, in which they are embodied.”
78
Computer programs “fall squarely within the statutory definition of
literary works”
79
because they are “written in some form of computer
programming ‘language’” consisting of words or numbers.
80
71
Weber, supra note 64, at 187–88.
72
Paperback Software Intern, 740 F. Supp. at 49.
73
FINAL REPORT, supra note 53, at 1.
74
Paperback Software Intern, 740 F. Supp. at 50.
75
17 U.S.C. § 101 (2016).
76
Weber, supra note 64, at 188.
77
17 U.S.C § 102.
78
17 U.S.C § 101.
79
Paperback Software Intern, 740 F. Supp. at 49.
80
Id. at 43–44.
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A. Protecting the Literal Code
So, the written code that underlies computer programs is
copyrightable as a literary work and protected against exact copying.
However, there exist more than one type of computer program.
81
Specifically, there are operating system programs and application
programs that are written in difference types of code.
82
In Apple v.
Franklin, Franklin called into question the copyrightability of operating
system programs, while conceding the copyrightability of application
programs.
83
The Third Circuit, in its ruling of the case, decided the
copyrightability of operating system programs and whether or not
operating system programs and application programs deserved dissimilar
treatment under copyright law.
84
i. Basic Computer Program Concepts
Two different categories of programming language exist: source
code and object code.
85
Program developers write application programs,
programs which “perform specific tasks for the computer user, such as
word processing, checkbook balancing, or playing a game,”
86
in source
code, which consists of “high level readable language”.
87
A compiler, “a
separate program that reads the source code,” translates the source code
into object code.
88
Object code is “written in machine language that can be
executed directly by the computer's CPU without need for translation.”
89
Object code, at its lowest level, typically consists of binary language: i.e.,
ones and zeros.
90
A computer interprets these ones and zeros as
81
Ronald S. Laurie, Daniel S. Lin, & Matthew Sag, Source Code versus
Object Code: Patent Implications for the Open Source Community, 18 SANTA
CLARA HIGH TECH. L.J. 235 (2001),
https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1300&context=
chtlj.
82
Id.
83
Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240,
1243 (3d Cir. 1983). Arguably, Franklin conceded the copyrightability of
application programs because it had already been established in precedent and
also because they likely wanted protection for their own application program.
84
Id.
85
Laurie, Lin & Sag, supra note 81.
86
Franklin Computer Corp., 714 F.2d at 1243.
87
Laurie, Lim & Sag, supra note 81, at 238.
88
Id.
89
Paperback Software Intern, 740 F. Supp. at 40.
90
Id.
BUSINESS, ENTREPRENEURSHIP & THE LAW VOL. XII:II
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instructions to operate in a particular way, creating the visual displays and
interactions typically associated with what users experience the program
to be.
91
ii. Protection for Both Source Code & Object Code
In 1984, the Third Circuit established that both source code and
object code are proper subjects of copyright protection as literary works.
92
In Apple v. Franklin, Franklin admitted to copying Apple’s programs, but
argued that Apple’s programs were not protected by copyright law.
93
Franklin argued that Apple’s programs were operating systems written in
object code, and thus constituted either (1) processes, systems, or methods
of operation,
94
or (2) ideas.
95
The court decided that “Franklin’s attack on operating system
programs as ‘methods’ or ‘processes’ seems inconsistent with its
concession that application programs are an appropriate subject of
copyright.”
96
Franklin conceded that application programs written in
source code were an appropriate subject of copyright, and the court found
no relevant distinction between the operating system and application
programs that would justify denying copyright protection for one and
affording copyright protection for the other.
97
So, without explicitly ruling
that Apple’s operating system programs were or were not processes,
systems, or methods of operation, the court concluded that so long as
application programs written in source code are not categorically excluded
from copyright protection, neither are operating system programs written
in object code.
98
The court did not necessarily reject Franklin’s argument that the
operating system program constituted an idea, but it decided that the
record lacked sufficient evidence for the court to make the determination
at the appellate level.
99
When analyzing whether or not Apple’s operating
91
Id.
92
Franklin Computer Corp., 714 F.2d at 1249. “Thus[,] a computer
program, whether in object code or source code, is a ‘literary work’ and is
protected from unauthorized copying, whether from its object code or source code
version.” Id.
93
Id. at 1245.
94
Id. at 1250.
95
Id. at 1252.
96
Id. at 1251.
97
Id.
98
Id.
99
Id. at 1253.
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system programs constituted unprotectable ideas instead of protectable
expressions, the court employed the merger doctrine: “If other programs
can be written or created which perform the same function as an Apple’s
operating system program, then that program is an expression of the idea
and hence copyrightable.”
100
In this particular context, the court
considered the idea of one of Apple’s programs to be “how to translate
source code into object code” and decided that if, as a practical matter,
there exist other ways of expressing that idea, then the expression does not
merge with the idea into an unprotectable whole.
101
iii. Applicability to VR
Developers of VR technology will likely develop both application
and operating system programs, because the user experiences will come
from application programs and those programs will interact with the
hardware of VR technology through operating system programs. In this
sense, protection for VR experiences should not different from that for
traditional computer programs, and both VR application and operating
system programs should, in the very least, not be categorically barred from
copyright protection.
B. Protecting the Non-Literal Elements
Beyond the discussion of the protectability of literal source or
object code, a special nature of computer programs creates a “vexatious
issue in Intellectual Property law” as programs can copy the functions and
operations of another computer program without copying the underlying
code
102
because there exists more than one way to write object code for
any given program operation.
103
This nature of computer programs raises
the question of whether or not the functions and operations, the “non-
literal elements” of a computer program, are protectable under Copyright
law.
104
100
Id.
101
Id.
102
Daniel A. D. Hunter, Protecting the Look and Feel of Computer
Software in the United States and Australia, 7 SANTA CLARA HIGH TECH. L.J. 95,
96 (1991).
103
Stephen M. McJohn, COPYRIGHT: EXAMPLES AND EXPLANATION 102
(2006).
104
Hunter, supra note 102, at 96.
BUSINESS, ENTREPRENEURSHIP & THE LAW VOL. XII:II
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i. Early & Broad Protection of Non-Literal Elements
In an early case, in 1986, the Third Circuit extended copyright
protection beyond the literal object code to the “structure, sequence, and
organization” of the code of a computer program.
105
Whelan concerns
alleged infringement of the structure of a program used by dental
laboratories.
106
There, the court considered “whether the structure (or
sequence and organization) of a computer program is protectable by
copyright, or whether the protection of the copyright law extends only as
far as the literal computer code.”
107
In its analysis, the court focused on the distinction between an
uncopyrightable idea and a copyrightable expression of an idea, and it
determined that “[w]here there are various means of achieving the desired
purpose, then the particular means chosen is not necessary to the purpose;
hence, there is expression, not idea.”
108
The court in Whelan created a rule for determining when an aspect
of a computer program is an idea and when it is an expression of that idea,
and the court limited the expression to “everything that is not necessary to
[the program’s] purpose or function.”
109
Everything else is protectable as
expression.
110
This decision extends copyright protection far beyond the
literal object code, and for this reason, it has attracted criticism from other
courts and commentators.
111
Where the court in Whelan analogized computer programs to
other literary works, such as novels, critics contend that this analogy is
faulty because computer programs are largely factual, and thus deserve a
much thinner layer of protection.
112
ii. Limiting the Protection of Non-Literal Elements
Oracle v. Google represents the most recent decision on the
subject of the copyrightability of the structure, sequences, and
105
Whelan Assoc. v. Jaslow Dental Laboratory, Inc., 797 F.2d 1222 (3d
Cir. 1986).
106
Id. at 1224.
107
Id.
108
Id. at 1236.
109
Id. (italics omitted).
110
Id.
111
See generally McJohn, supra note 103.
112
Id.
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organization of a computer program.
113
Initially, the district court found
that the structure, sequence, and organization of Oracle’s computer
program “were not subject to copyright protection,” and dismissed
Oracle’s claims based on Google’s copying of the structure, sequence, and
organization of its computer programs.
114
While acknowledging that “the
structure, sequence, and organization of a computer program may (or may
not) qualify as a protectable element,” the court decided that the specific
elements under scrutiny in this case were not eligible for protection,
because, in the court’s opinion, Oracle claimed “that it owns, by copyright,
the exclusive right to any and all possible implementations of the
taxonomy-like command structure” for the particular packages of code,
“even though it copyrighted only one implementation.”
115
Further, it
decided that even though the structure, sequence, and organization of the
program was “creative and original, it nevertheless held that it is a ‘system
or method of operation . . . and, therefore, cannot be copyrighted.’”
116
The Federal Circuit, in 2014, reversed and remanded the district
court’s decision, finding that the structure, sequence, and organization of
the packages of code were entitled to copyright protection.
117
In its
analysis, the court rejected Goggle’s contention that “there is a two-step
copyrightability analysis, wherein Section 102(a) grants copyright
protection to original works, while Section 102(b) takes it away if the work
has a functional component.”
118
The functional bar suggested by Google
is a reference to Section 102(b)’s exclusion of “methods of operation” to
copyrightable subject matter.
119
Instead, the court contended that
Congress’s intention with Section 102(b) is not to take away any rights
otherwise afforded, but is to “restate . . . that the basic dichotomy between
expression and idea.”
120
Further, the court noted that if it “were to accept
the district court’s suggestion that a computer program is uncopyrightable
simply because it carr[ies] out pre-assigned function, no computer
program is protectable.”
121
While the court acknowledged that “[c]icuit courts have struggled
with, and disagree over, the tests to be employed when attempting to draw
the line between what is protectable expression and what is not,” it decided
to use the test followed by the Ninth Circuit and Second Circuit, called the
113
Oracle Am., Inc. v. Google Inc., 872 F. Supp. 2d 974 (N.D. Cal. 2012).
114
Id.
115
Id. at 1001–02.
116
Id. at 997.
117
Oracle v. Google, Inc., 750 F.3d. 1339, 1348 (Fed. Cir. 2014).
118
Id. at 1356.
119
Id. at 1357.
120
Id. at 1356.
121
Id. at 1367 (internal quotations omitted).
BUSINESS, ENTREPRENEURSHIP & THE LAW VOL. XII:II
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“abstraction-filtration-comparison test.”
122
This test represents a medium
approach between the broad protection offered in Wheelan and the narrow
protection offered in Lotus.
123
The first step of the test, the abstraction step, “break[s] down the
allegedly infringing program into its constituent structural parts.”
124
All
circuits agree this step contributes to the copyrightability analysis.
125
The
second stop, the filtration step, “sift[s] out all non-protectable material,
including ideas and expression that is necessarily incidental to those
ideas.”
126
The circuits have a less uniform opinion on this step, in terms of
whether it contributes to the analysis of copyrightability or to the analysis
of infringement, however the Ninth Circuit treats it as a defense to
infringement.
127
The third step, which is considered by all circuits to be part of the
infringement analysis,
128
“compares the remaining creative expression
with the allegedly infringing program.”
129
Ultimately, the court decided that a “an original work—even one
that serves a function—is entitled to copyright protection as long as the
author had multiple ways to express the underlying idea.”
130
This analysis
of the dichotomy between idea and expression resembles the merger
doctrine and declares that so long as there exists multiple ways to express
a particular idea, the expressions do not merge with the idea and they
constitute copyrightable subject matter.
Oracle suggests that there is protection for the non-literal
components of computer programs, so long as there exist multiple ways to
accomplish the functionality of the program. While this is a promising step
towards protection for computer programs, the Supreme Court denied
certiorari, there has been anything but consistency throughout the district
and circuit courts on the topic.
122
Id. at 1357.
123
Id.
124
Id.
125
Id. at 1358.
126
Id. at 1357 (internal quotations omitted).
127
Id. at 1358.
128
Id.
129
Id. at 1357.
130
Id. at 1367.
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iii. Applicability to VR
Because of the lack of clarity amongst the courts, programmers of
VR software wanting to protect the structure, sequences, and or operations
of their programs, should be wary of the scope of the protection that
copyright law will afford them.
131
Regarding copyrightability, the nuances
of VR programs, as compared to traditional computer programs, arguably
lie in their audiovisual outputs, as opposed to their underlying code. This
is because, while acknowledging the intricacies and challenges involved
in developing new kind of software, there is no obvious additional
component involved in the object code of VR software, as opposed to
traditional software, that would be anymore copyrightable than those
components discussed in the aforementioned cases.
132
For this reason, the
copyrightability of a VR program’s structure, sequence, and operations
will likely be interpreted the same way it would be for a traditional
program.
133
How, then, do VR developers protect their programs from
nonliteral infringement? The answer to this question is also unclear,
because, as articulated in CONTU’s final report, the other avenues of
protection are just as unreliable.
134
While patent protection offers a more
robust monopoly, “the acquisition of a patent . . . is time consuming and
expensive, . . . and the legal hurdles an applicant must overcome are
high.”
135
Further, it remains unclear if computer programs are even eligible
for patent protection because the Supreme Court has never explicitly
addressed the matter.
136
Trade secrecy is arguably further inadequate
because “it is inappropriate for protecting works that contain the secret and
are designed to be widely distributed.”
137
Not only are many computer
programs widely distributed, but also many of the non-literal elements are
readily observable from interaction with the program. These features make
trade secret protection inadequate for many aspects of computer programs.
Through interpreting the Copyright Act, courts may find that
copyright protection does not extend to the nonliteral components of
computer programs, but if those Congress decides those elements are
worthy of some form of protection, they may have to consider either
revising the Copyright Act or exploring new avenues of protection. With
VR being such a long-anticipated, promising, and coveted technology, it
131
Russo & Risch, supra note 41.
132
Jerald, supra note 19, at 9.
133
Id.
134
FINAL REPORT, supra note 53, at 16.
135
FINAL REPORT, supra note 53, at 17.
136
Id.
137
Id.
BUSINESS, ENTREPRENEURSHIP & THE LAW VOL. XII:II
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may incentivize the Supreme Court to take more cases on the subject,
solidifying the rules governing its protection, which may, in turn,
incentivize Congress to expand the scope of protection for computer
software, whether it be through Copyright Law or some new form of
Intellectual Property devoted to computer software.
IV. PROTECTING COMPUTER PROGRAMS AND VIRTUAL REALITY
EXPERIENCES AS AUDIO-VISUAL WORKS
Also, relevant to the discussion of the copyrightability of VR
software is the line of cases concerning the copyrightability of the visual
display of programs registered as audiovisual works.
138
Originally, the
Copyright Office allowed separate registrations for the visual displays of
programs (on Form PA for audiovisual works) and for the underlying code
(on Form TX for literary works),
139
but in 1987, it held hearings “to obtain
comments and recommendations on how it should proceed in this area.”
140
One of the views suggested at these hearings advocated for a
“single registration to cover the entire work including visual displays.”
141
Under a single registration regime, one registration, whether it be as a
literary work or an audiovisual work, would “cover the entire work
including visual displays.”
142
A similar and related view advocates for a
single registration, where the registration form would not be a Form PA or
Form TX, but an entirely new form designed specifically for computer
programs.
143
Another view argues for separate registrations: one for the
underlying program code and one for the visual displays.
144
Under this
regime, advocates argued, “it would be clearer that an infringement of
visual displays can occur independent of any infringement of the
underlying program code.”
145
The last view contends that “the Copyright Office should not
allow any registration of visual displays of computer software” because
138
Hunter, supra note 102.
139
Russo & Risch, supra note 41.
140
Id.
141
Id.
142
Id.
143
Id.
144
Id.
145
Id.
2019 COPYRIGHTING EXPERIENCES
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“such displays are generally functional” and therefore not
copyrightable.
146
This view will be discussed in more detail below.
In June 1988, the Copyright Office settled on a single registration
regime, where the choice between registering a program on a Form PA or
Form TX depended on “which aspect of the work ‘predominates.’”
147
A. VR Video Games
Gaming is one of the most common and anticipated applications
of VR technology.
148
There is precedent in case law, specifically in Stern
Electronics v. Kaufman,
149
concerning the copyrightability of videogames
as audiovisual works, however the interactivity of VR experiences may
differentiate it from the video game discussed in Stern.
i. Stern Electronics v. Kaufman
The Second Circuit decided an early case which established the
copyrightability of video games as audiovisual works.
150
The case
concerned a coin-operated video game entitled “Scramble” and its alleged
infringement by another game, which replicated its visual display and
accompanying sounds.
151
Because the “knock-off” game did not copy the
underlying code, the Defendant argued that only the underlying code
deserved copyright protection and that the “visual images and
accompanying sounds of the video games fail[ed] to satisfy the fixation
and originality requirements of the Copyright Act.”
152
The Defendant’s claim rested on the fact that user interaction
dictated which images and sounds the program displayed.
153
Specifically
with “Scramble,” which displayed a spaceship moving through different
scenes and obstacles, the user “control[led] the altitude and speed of the
spaceship” and controlled when the spaceship would release bombs and
fire lasers.
154
So, the Defendant argued that because the visual displays
were different every time anyone user played the game, there was no one
146
Id.
147
Id.
148
“[B]oth of the current major players in the consumer VR space,
Oculus and HTC, have their roots in the video games industry.” How Reality
Technology is Used in Gaming, REALITY TECHNOLOGIES,
http://www.realitytechnologies.com/sports (last visited Feb. 17, 2018).
149
Stern Electronics, Inc. v. Kaufman, 669 F.2d 852 (2d Cir. 1982).
150
Id.
151
Id.
152
Id. at 853.
153
Id.
154
Id.
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audiovisual copyright applicable to each play of the game.
155
The court
disagreed, deciding that “the repetitive sequence of a substantial portion
of the sights and sounds of the game qualifies for copyright protection as
an audiovisual work.”
156
ii. VR Application
One of the most widely known and anticipated applications of VR
is video games.
157
A similar, and more general, application is a general
virtual “experience,” where the focus is not necessarily on an objective the
user must accomplish, but instead the focus is on the user having an
entertaining experience, such as participating in a storyline resembling a
theatrical work or experiencing a particular setting, like sitting in a park.
158
In any of these applications, the user’s experience will comprise
audiovisual displays in a perceived three-dimensional environment.
159
Courts will likely analyze the copyrightability of these displays in a similar
way they analyze audiovisual displays in video games because while each
user’s experience will be different, there exists the same sort of repetitive
sequences in both.
160
However, there may be additional challenges brought by
defendants concerning the special nature of virtual works.
161
First, virtual
experiences will be highly interactive on a scale unprecedented by
previous audiovisual works. Defendants could potentially argue that the
extreme level of interaction in VR differs so much from that employed in
the coin-operated “Scramble” so it destroys the presence of consistency
between the audiovisual displays; the different experiences of the different
users may be so different that there is no one consistent audiovisual
display.
162
Secondly, arguments against protecting a VR experience as an
audiovisual work may arise from the fact that VR may “exploit additional
senses, including, but not limited to, tactile and olfactory stimuli.”
163
This
could pose a problem because the Copyright Act defines an audiovisual
155
Id.
156
Id. at 856.
157
Russo & Risch, supra note 41.
158
Id.
159
Id.
160
See id.
161
Id.
162
Id.
163
Cho, supra note 62, at 811.
2019 COPYRIGHTING EXPERIENCES
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work as “works that consist of a series of related images which are
intrinsically intended to be shown by the use of machines, or devices such
as projectors, viewers, or electronic equipment, together with
accompanying sounds,”
164
limiting the scope of an audiovisual work to the
visual and audio components.
165
So, while developers may intend to
protect the holistic experience of a VR environment, they may be limited
to protecting only certain components of the environment.
Instead of copyrighting a VR experience as an audiovisual work,
developers may attempt to protect the experience as a “compilation.” The
Copyright Act defines a “compilation” as “a work formed by the collection
and assembling of preexisting materials or of data that are selected,
coordinated, or arranged in such a way that the resulting work as a whole
constitutes an original work of authorship.”
166
A VR experience may fit
this definition as a collection of sensory effects, where originality is found
in the selection, coordination, and arrangement of the effects.
167
It is possible that Trademark law could provide an avenue of
protection. “Scent marks in particular are becoming increasingly popular,
as the imitation (or exploitation) of the senses or certain aesthetics is
revealed to play a significant role in consumer psychology.”
168
Further, in
Two Pesos v. Taco Cabana, the Supreme Court decided that the design of
a restaurant warranted trade dress protection.
169
Since this holding, trade
dress has protected user interfaces and website designs.
170
This suggests
that a virtual environment could be eligible for trade dress protection if
sufficiently distinctive.
B. VR User Interfaces
i. Apple v. Microsoft
In Apple v. Microsoft, which is one of the more recent cases
concerning the copyrightability of user interfaces, Apple sued Microsoft,
claiming that Microsoft infringed on its Lisa Desktop and Macintosh
Finder.
171
Specifically, Apple claimed Microsoft infringes on its “desktop
164
17 U.S.C. § 101.
165
Cho, supra note 62, at 811.
166
17 U.S.C. § 101.
167
Cho, supra note 62, at 819.
168
Cho, supra note 62, at 812.
169
Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763 (1992).
170
Cho, supra note 62, at 825.
171
Apple Computer, Inc. v. Microsoft Corp., 35 F.3d 1435, 1438 (9th Cir.
1994).
BUSINESS, ENTREPRENEURSHIP & THE LAW VOL. XII:II
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metaphor with windows, icons and pull-down menus which can be
manipulated on the screen with a hand-held device called a mouse.”
172
The district court case represented the first “claim of copying a
computer program’s artistic look as an audiovisual work instead of
program codes registered as a literary work.”
173
This fact impacted
Apple’s contention that there was an ambiguity between the audiovisual
components and the literal program.
174
When looking at the line between copyrightable expression and
unprotected ideas, the court took into consideration the merger
doctrine.
175
In its analysis of a desktop icon representing a document, the
court considered an iconic image shaped like a page to be an obvious
choice.
176
The court also noted that this idea closely relates to the doctrine
of scenes à faire.
177
This doctrine posits that when particular features “are
as a practical matter indispensable, or at least standard, in the treatment of
a given [idea], they are treated like ideas and are therefore not protected
by copyright.”
178
The court relied on this doctrine in deciding that nothing
protects the mere use of Apple’s system of overlapping windows.
179
While not explicitly addressing the idea of functionality, the
merger doctrine and the scenes à faire doctrine inevitably incorporated
functionality.
180
For example, when applying the merger doctrine, the
court considered the expression of the icons to merge with the “idea” or
the icon, i.e. representing a document.
181
This “representation” is
functional in nature because the icon functions as an indication that when
you click on it, a document will come up.
182
Similarly, in its analysis of
the scenes à faire doctrine, the court decided that the system of overlapping
windows was indispensable to the “idea” of having multiple windows.
183
172
Id.
173
Id. at 1439.
174
Id. at 1441.
175
“Well-recognized precepts guide the process of analytic dissection.
First, when an idea and its expression are indistinguishable, or ‘merged,’ the
expression will only be protected against nearly identical copying.” Id. at 1444.
176
Id.
177
Id.
178
Id. (quoting Frybarger v. Int’l Bus. Machs. Corp., 812 F.2d 525, 530
(9th Cir. 1987)).
179
Id.
180
Id.
181
Id.
182
Id.
183
Id.
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However, it is only indispensable if ease of functionality on the program
is essential.
184
The fact that functionality is inevitably part of the analysis of the
copyrightability of computer programs should come as no surprise
because the Copyright Act defines a computer program as “a set of
statements or instructions to be used directly or indirectly in a computer in
order to bring about a certain result.”
185
One can define functionality as the
ability to bring about a certain result.
186
Accordingly, it seems impossible
to separate a computer program’s copyrightability from its functionality.
However, the courts have viewed programs’ functionality as an obstacle
to the programs’ copyrightability.
187
In many cases, Section 102(b)
justifies this hurdle, by stating that “[i]n no case does copyright protection
for an original work of authorship extend to any . . . method of operation .
. . .”
188
However, in Oracle America, Inc. v. Google Inc., the court noted
that this is not supposed to be a second step to copyrightability that deters
from already copyrightable subject matter, but rather it is supposed to
emphasize the distinction between idea and expression.
189
ii. VR Application
Apple poses many problems for protecting VR experiences
through copyright, particularly because VR experiences, in a way, are the
ultimate user interface.
190
Instead of a user interface having an icon shaped
like a blank document, representing a document, a virtual environment
could have the actual document (represented virtually).
191
Instead of a user
clicking on an icon with a cursor controlled by a mouse, the user may
simply interact with the virtual document just as he or she would interact
with a real-world document.
192
This could implicate the merger doctrine
because there would be an extremely finite amount of ways to express the
“idea” of any given interaction.
193
184
Id.
185
17 U.S.C. § 101 (emphasis added).
186
Functionality, MERRIAM-WEBSTER (2019), https://www.merriam-
webster.com/dictionary/functionality.
187
Oracle Am., Inc. v. Google Inc., 750 F.3d 1339, 1356 (Fed. Cir. 2014).
188
17 U.S.C. § 102.
189
Oracle Am., Inc., 750 F.3d at 1356.
190
“Software designers continually strive to produce increasingly user-
friendly interfaces. Virtual Reality is the utmost fulfillment of that end.” Weber,
supra note 64, at 189.
191
Id.
192
Id.
193
See generally Oracle Am., Inc., 750 F.3d at 1339.
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For example, in Manufacturers Technologies Inc., v. Cams, Inc.,
the district court decided that “the placement of common screen
components in certain specific locations is limited by several constraints,”
and that the narrow range of possibilities for the placement of headings
and other formatted displays rendered the screen display
uncopyrightable.
194
Similarly, the court decided that the method of
navigation of screen displays was not protected because the navigation
was highly dependent on the hardware and the possibility of internal
navigation was limited.
195
The court also considered its limitations in the
number of ways to appeal to the user’s comfort,
196
and decided that “to
give the plaintiff . . . protection for this aspect of its screen displays, would
come dangerously close to allowing it to monopolize a significant portion
of the easy-to-use internal navigational conventions for computers.”
197
Applying this analysis to VR, hardware limitations and limitations
created by facilitating user comfort would severely limit protection. Issues
with motion sickness, headaches, and general discomfort arise in many
VR experiences when the experiences do not align with the user’s
expectation of reality, particularly when a visual display lags behind the
user’s motion.
198
This is an extreme case of user discomfort, unparalleled
to the discomfort users could experience with a traditional computer
program.
199
In a less extreme, but also very relevant example, users would
expect an experience that attempts to imitate the real world to resemble
the real world. For example, objects would fall to the ground if not held
up, and if a user “grabbed” a virtual document, it would move with the
user’s hand. Generally speaking, user’s expectations of real-world
interactions may significantly limit user’s expectations in a VR
experience, and this could inhibit the range of possibilities for VR user
interfaces and methods of interactions with virtual objects.
This aspect of VR may incline courts to decide that the visual
displays in VR experiences merge very often with the courts’ idea. Thus,
protection will likely be more probable for interfaces and interactions that
are dissimilar from the real-world experience.
194
Mfs. Tech. Inc. v. Cams, Inc., 706 F. Supp. 984, 995 (D. Conn. 1989).
195
Id.
196
Id.
197
Id.
198
Anastasiia Ku, Motion Sickness in VR, UX PLANET (Nov. 29, 2018),
https://uxplanet.org/motion-sickness-in-vr-3fa8a78216e2).
199
Id.
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iii. Useful Articles
Many cases deciding the copyright eligibility of computer
programs hinge on determining whether particular aspects of computer
programs are functional in nature, which would bar protection either
through the “method of operation” limitation in the Copyright Act, or
through the merger or scenes à faire doctrine.
200
If any of these three
limitations apply to part of a computer program, courts will consider the
aspect more an idea than a protectable expression and will not afford the
aspect protection under Copyright Law.
201
While computer programs have
been registered and protected as literary and audiovisual works
historically, an additional category of copyright protection arguably exists:
sculptural, pictorial, or graphical works.
202
If one were to consider a
program (or the visual output of a program) a sculptural, pictorial, or
graphical work, then a protection exception to the functionality limitations
would exist. This exception is the useful article doctrine. The Copyright
Act defines a “useful article” as “an article having an intrinsic utilitarian
function that is not merely to portray the appearance of the article or to
convey information”.
203
While the Copyright Act defines “useful article” in its general
definitions section, every other reference to “useful articles” appears either
in the definition of “pictorial, graphic, and sculptural works” or in Section
113: “Scope of exclusive rights in pictorial, graphic, and sculptural
works.”
204
These references comprise the rules for the treatment of “useful
articles” in Copyright law, and are arguably only applicable to pictorial,
graphic, and sculptural works.
205
The Copyright Act’s definition of pictorial, graphical, and
sculptural works states the rule regarding the copyrightability of useful
articles:
“[T]he design of a useful article, as defined in this section, shall
be considered a pictorial, graphic, or sculptural work only if, and only to
the extent that, such design incorporates pictorial, graphic, or sculptural
200
See generally Oracle Am., Inc. v. Google Inc., 750 F.3d 1339, 1348
(Fed. Cir. 2014); Mfs. Tech. Inc. v. Cams, Inc., 706 F. Supp. 984, 995 (D. Conn.
1989).
201
Id.
202
See 17 U.S.C. § 101.
203
See 17 U.S.C. § 101.
204
17 U.S.C. § 113.
205
See generally 17 U.S.C. § 101, 113.
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features that can be identified separately from, and are capable of existing
independently of, the utilitarian aspects of the article.”
206
In 2017, the Supreme Court interpreted this section of the
Copyright Act.
207
The Court determined that to meet the first requirement
in the statute, the “separate identification,” “[t]he decisionmaker need only
be able to look at the useful article and spot some two- or three-
dimensional element that appears to have pictorial, graphic, or sculptural
qualities.”
208
The second requirement, the “independent-existence
requirement,” is “more difficult to satisfy,” and “[t]he decisionmaker must
determine that the separately identified feature has the capacity to exist
apart from the utilitarian aspects of the article,” meaning that “the feature
must be able to exist as its own pictorial, graphic, or sculptural work as
defined in § 101 once it is imagined apart from the useful article.”
209
There is arguably potential for the rules of pictorial, graphic, and
sculptural works to apply to virtual objects. The Copyright Act defines
pictorial, graphic, and sculptural works to “include two-dimensional and
three-dimensional works of fine, graphic, and applied art, [and]
photographs . . . ” among other examples.
210
While not an obvious or
immediate conclusion, a potential plaintiff could argue that one should
consider a virtual object as pictorial, graphic, or sculptural, and thus the
virtual object is immune to any arguments that it should not receive
protection because of the virtual object’s utilitarian nature. This would
require an analysis of the ontological status of virtual objects and whether
to consider them as two-dimensional or three-dimensional. One may more
likely consider virtual objects two- or three-dimensional than considering
components in a traditional computer program two- or three-dimensional
because of the level of interactivity between the virtual objects and the
user, and because they behave in a way very similar to real world two- or
three-dimensional objects. This is especially true because virtual objects
appear to exist in the world around the user.
211
This argument could potentially carry more weight when the
display of the virtual object maps itself onto a real-world physical object
in the real-world space surrounding the user. For example, a display of a
baseball bat could appear on a real-world rod, and when the user looks in
206
17 U.S.C. § 101.
207
Star Athletica, LLC v. Varsity Brands, Inc., 137 S. Ct. 1002 (2017).
208
Id. at 1010.
209
Id.
210
17 U.S.C. § 101.
211
See generally Weber, supra note 64.
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the direction of the real-world rod, he or she sees the display of the bat in
the rod’s place. This could strengthen the argument that one should
consider the virtual display of the object sculptural.
If virtual objects classify as pictorial, graphical, or sculptural
works, the useful article doctrine, as interpreted in Star Athletica v. Varsity
Brands, could apply, eliminating any bar to copyright protection based on
functionality.
212
Further, it appears that many virtual objects could meet
the standard set forth in Star Athletica v. Varsity Brands.
213
Consider a
potential virtual object: a folder that contains documents in a user
interface-focused experience. The folder may be functional, in the sense
that it serves utilitarian functions by indicating a repository of documents,
but so long as it (1) appears to have pictorial, graphical, or sculptural
qualities and (2) can exist on its own as a pictorial, graphical, or sculptural
work,
214
it may be eligible for copyright protection despite its utilitarian
aspects.
CONCLUSION
In the absence of a Supreme Court case on the subject and a lack
of uniformity between the circuits, the scope of copyright protection
afforded to the code of computer programs (particularly the scope of
protection for the non-literal elements of computer programs) is
uncertain.
215
However, precedent exists, from which future cases can
draw, including the abstraction-filtration-comparison method
216
and the
standards set forth in Apple Computer, Inc. v. Microsoft Corp. Apple v.
Microsoft indicates that the more original and expressive a given element
is in a user interface the more likely it will receive protection, because it
212
See Star Athletica, LLC, 137 S. Ct. at 1010.
213
See generally Star Athletica, LLC, 137 S. Ct.
214
See Star Athletica, LLC, 137 S. Ct. at 1010.
215
“The three views expressed in the Copyright Office roughly
correspond to the views also found in the conflicting judicial opinions addressing
these same issues: like Apple's position in the Copyright Office, one body of case
law provides broad protection; another would provide only limited or narrow
protection (as suggested by some of the user associations in the Copyright Office
hearings); and the most recent cases appear to take a middle ground approach of
protecting certain user interface elements on a case-by-case basis (somewhat
similar to the majority view in the Copyright Office). No U.S. Supreme Court
case has yet directly resolved the conflicting decisions.” Jamie Nafziger & Jack
Russo, Look And Feel In Computer Software, COMPUTERLAW GROUP LLP
(1993), http://www.computerlaw.com/Articles/Look-and-Feel-in-Computer-
Software.shtml#Supreme%20Court%20Developments.
216
See Oracle v. Google, Inc., 750 F.3d. 1339, 1348 (Fed. Cir. 2014).
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will be less likely that the merger or scenes á faire doctrine will bar it from
protection. Similarly, even if a visual non-literal aspect of a computer
program is barred from protection, or filtered out through the abstraction-
filtration-comparison test based on its functional nature, there is a
possibility that it instead could be protected as a pictorial, graphical, or
sculptural work. If so, it’s protection will also be based off of its original
and expressive aspects. So, as a general guideline, developers should
emphasize the expressive visual elements of a VR experience, particularly
because VR experiences seem to fall prey to the limits of copyright law
more easily than traditional programs.
A further reason to consider protection as a pictorial graphical, or
sculptural work is that the precedent giving interactive experiences like
computer games copyright protection may be distinguished from a case
concerning a VR experience. It remains possible that VR experiences,
being considered as one congruent audiovisual work, may not satisfy the
fundamental, threshold requirements for copyrightability, originality and
fixation. Stern decided that a coin-operated videogame had enough
consistency to be considered original and fixed, but with the
extraordinarily high level of interaction in a VR experience, it remains
entirely possible that a court could find a unsatisfactory amount of
consistency between different users’ experiences in a VR application.
Because of the potential for VR to become a revolutionary
technology, it may serve as a motivation for the Supreme Court to clarify
the scope of protection for computer programs, and the relationship
between copyrightability and functionality. In the meantime, developers
should be wary of idiosyncrasies of VR that may affect its eligibility of
copyright protection, and should consider emphasizing the expressive
individual elements of their programs and registering them as pictorial,
graphical, or sculptural works.
The development and future of VR technology will undoubtedly
be exciting to watch unfold, and so will the development and possible
clarifications of copyright protection for highly interactive computer
programs, like VR experiences.
