The Limited Scope Of Inventors’ and Creators’ Rights Under Copyright, Trademark, and Patent Infringement Law
The business lawsuits actually filed, and defamation lawsuit not filed, surrounding Mark Zuckerberg and Facebook have inspired some of my more popular posts. But there is one litigious part of the Facebook story that I did not cover, and that was the lawsuit brought by the Winklevoss twins against Zuckerberg alleging that he stole the idea for Facebook from them.
Here’s why I avoided that part: without knowing the intricacies of the case (a case they’re trying to reopen), there’s not a lot for me to say. The bare allegation that someone else stole your idea for a business (or a product or a work of art) is ordinarily not enough to win a lawsuit, not under copyright law, trademark law, patent law, or any other intellectual property law. The law does not protect generalized expressions of ideas; the law protects the implementation of ideas.
There’s good reason for that. Though some ideas for businesses are certainly better than others, and though some ideas really are great ideas that no one had before, we cannot justify the burden and expense of a lawsuit every time someone, somewhere vaguely claims that they once had a similar idea. Fact is, successful businesses, useful inventions, and compelling works of art are all, as Thomas Edison — himself more a shrewd businessman than a genius inventor — is reputed to have said, invention is one percent inspiration and ninety-nine percent perspiration.
Mark Zuckerberg didn’t come up with the idea for an online social network, register the domain Facebook.com and collect a few billion dollars. Thomas Edison didn’t come up with the idea of stringing electrical wire in a vacuum, throw a light bulb together in an afternoon, and then enjoy his empire. Cormac McCarthy didn’t come up with the idea for a post-apocalyptic novel, shoot off a rough draft, and collect his Pulitzer and movie residuals. They all had ideas — or, better stated, took pre-existing ideas — and then made them work well.
An idea for a light bulb is not a light bulb. Making an idea for a light bulb go off outside of your head requires a tremendous amount of work, patience, dedication, and perseverance. As Edison said when asked about his many failed ligh tbulb designs, “I have not failed 1,000 times. I have successfully discovered 1,000 ways to not make a light bulb.”
Which brings us to the inspiration for this post. One of my kids’ favorite shows was WordWorld, which is probably better summed up by a picture than any actual words.
It’s a fun little show in which a couple animals, themselves constructed from their own names, use letters to interact and build with various objects in their world. It’s cute, entertaining, and reasonably educational.
What I did not know was the litigious animosity in the show’s history. As Patently-O recounted:
In 1993 and 1994 Kyle Morris and William Kirksley filed several patent applications all directed toward animated captioning “coordinated with oral-word utterances.” The idea was to actually see the words coming from the mouth of the speaker in a movie or television program. … Morris brought-in Don Moody to help develop a new children’s television show. However, after a falling-out, Moody left and started the successful Word World show that was broadcast on PBS beginning in 2007.
… In the lawsuit, Morris alleged both patent and copyright infringement. … On copyright, Morris argued that he owned a copyright on the phrase “where words come alive” that Word World uses as its slogan as well as a copyright in the “teaching methodology” that he had developed.
The District Court dismissed Morris’ patent and copyright claims (see Patently-O for the opinion; I don’t want to hog their bandwidth) and the Federal Circuit affirmed without an opinion. In short, Word World was similar to the original idea, and almost certainly took elements from it, but not enough to constitute patent or copyright infringement.
That is, Morris had an idea, tried to make it work, brought on help to make it work, but, for whatever reason, couldn’t get it to succeed. One of the people he brought on ran with the idea, made some changes and made it work. The lightbulb actually went off.
So who, as a matter of law, “invented” WordWorld? The same person who “invented” the lightbulb: the one who made it work.