You probably think of a trademark, whether it's on a Microsoft Windows logo, a Xerox machine, or a box of Kleenex, as a mark of product identification. You may think of a patent as an ownership claim on a strange invention or chemical process. And when you think of a copyright, you may visualize a book, a magazine article, or a piece of music branded with a name and date claiming ownership of that work.
Where do graphics file formats fit into this scheme? Let's start to answer this question by examining trademarks, then patents, and finally copyrights.
The authors are not attorneys, and this information should not be construed as legal advice. We advise you to contact an intellectual property attorney if you have a need for absolutely accurate and up-to-date information.
Trademarks are words, names, or symbols used to identify a product or a service. Owning a trademark doesn't mean that you own the actual words associated with the trademark claim (although Eastman Kodak and Xerox Corporation might disagree). The trademark only bestows ownership of a word or phrase within a certain context, such as the word windows within the context of the computer industry.
Trademarks are important in the world of graphics file formats. CompuServe owns the trademark "GIF"; Adobe (and formerly Aldus) owns the trademark "TIFF"; and Microsoft owns the trademark "RIFF". You get the idea.
Graphical logos can also be the subject of trademarks. The Apple Computer and Microsoft Windows logos are registered trademarks belonging to those corporations. Original artwork used as a trademark can, unlike words, be owned by the holder of the trademark. An original piece of artwork is considered to be a "work of authorship," while a few words of the English (or other) language strung together in a clever way is not.
In summary, you can't trademark a graphics file or its format, but you can certainly trademark its name and logo.
What about patents? Can a graphics file format, the contents of such a file, or the file format itself be patented?
A patent is a claim to the ownership of an invention, process, or design that is "new, useful, and nonobvious." Inventions that are mechanical, chemical, electrical, or electronic in nature are covered by "utility patents." Functional and artistic designs are covered by "design patents." Which patent would apply to a file format?
Remember that file and data formats are just specific arrangements of information present in some type of medium or media. They are not the information or the media itself.
A utility patent would apply to the invention of storing information on a hard disk device, or text on the pages of a book, or even the concept of the book itself. But it would not apply to the format of the information, unless the format were a necessary part of the invention itself.
A file format is more of a functional design, as is the shape of an airplane or a cathode ray tube, rather than an artistic design, such as the pattern on a piece of fabric. Does this mean that you can create a new graphics file format and have its design patented?
To be awarded a patent, inventions and designs must be new, useful, and not derived from a pre-existing work. Although file formats exist in many different forms, they all still do the same job: store graphical data in an analog or digital medium. It is likely that attempting to obtain a design patent for a new file format would be turned down based on the existence of prior art.
Can a graphics file be copyrighted?
A graphics file itself cannot normally be copyrighted under United States copyright laws (although the rulings of some judges may disagree). The specification of a format and the "contents" of a graphics file, however, are subject to copyright. In other words, your secret barbecue sauce, or its recipe, can win a blue ribbon at the county fair but not the jar you put the sauce in, or the paper you wrote the recipe on.
For anything to be copyrighted it must be:
The description of a graphics format does meet both of these criteria if it is both fixed in a medium (printed on paper or stored on disk) and a work of authorship (not copied from a pre-existing work). Any file format specification that meets these two requirements is protected under the copyright laws.
A graphics file created using a format description, however, meets the second criteria but not the first. That is, the file itself is not considered to be a work of authorship. The file itself is considered instead to be an idea or a system and is therefore not protected by the laws of copyright.
So the description of a file format is copyrightable, but the format as it exists in its medium is not. What about the graphics data that the file contains?
If the graphics data written to a graphics file also meets the above two criteria, it is also protected by the copyright laws as intellectual property. You will not waive your copyright protection by storing any original information using a graphics file format.
How do you copyright the contents of a graphics file or a file format specification? There are several levels of copyright: formal, explicit, and implicit.
You can formally register the copyright of your work to establish priority as the creator of the work. This action gives you extra protection if you intend to sell or otherwise assign your copyright, or if you need to defend yourself in the event that the ownership of your work is disputed in a court of law. For the most up-to-date information about copyright registration, consult the U.S. Copyright Office (or the appropriate office in your own country) or an intellectual property attorney.
Most people copyright their work explicitly, but informally, by attaching a copyright notice to the work. (We'll describe how you do this in the sections that follow.) However, neither formal registration nor even the attachment of an explicit copyright notice is needed to establish copyright. Thanks to the Berne Convention on copyrights, the contents of any graphics files created after March 1, 1989, are automatically and implicitly copyrighted and protected, regardless of whether a copyright notice is actually present in the file. In fact, even all the posts on USENET and all email sent across the Internet are automatically copyrighted by these international laws.
Work for Hire
In many cases a copyright is not automatically assigned, such as with work-for-hire. If you are paid by someone to create a copyrightable work, the copyright belongs to your employer and not to you.
Unfortunately, many people do not realize that even though they don't see an explicit copyright notice on a file, the information in that file is still subject to protection under the copyright laws. We recommend that you include a visible copyright notice on your file. Doing so will drive the point home that the contents of your graphics files are at least in some ways protected by copyright laws.
A minimal copyright notice looks like this:
Copyright date(s) by author(s)
This notice visually establishes the fact the contents of your file are copyrighted on a given year(s) and indicates who holds the copyright. For example:
Copyright 1995-96 by James D. Murray
You might enhance your copyright notices by stating:
Copyright (C) 1995-96 by James D. Murray. All rights reserved.
The (C) is an ASCII attempt to represent the "c in a circle" (©) copyright symbol. Note that you must include either the word Copyright or the copyright symbol in your statement, It is redundant, but harmless, to include both. Note also that the (C) character that people put in ASCII files has not yet been accepted as a valid copyright symbol by any court of law.
The phrase All rights reserved was a requirement of several countries many years ago to consider a copyright notice valid. Under current international copyright laws, this phrase is no longer required, but many people still use it.
An object code copyright is a human-readable copyright notice that has been embedded into the object code of a library mode or executable file. This notice allows anyone who is performing a string search on an object file to see that the intellectual contents of the file are protected by copyright.
In ANSI C, you could use the following line of code to embed a copyright string into an object file:
static const char * const Copyright = "Copyright 1996 by James D. Murray";
This code creates a static constant named Copyright that contains your copyright string. This is also the string that should be displayed to the user with other information about the program.
Not everybody feels the need to copyright their work. Some people explicitly want to share the fruits of their labors. Instead of including a copyright notice in your file, you may choose to place the contents of your file format into the public domain. Doing so allows anybody to do anything they wish with your work. By placing your work in the public domain, you are, in effect, making a "no strings attached" contribution to the freely accessible knowledge base of humankind.
You place the contents of your graphics files into the public domain by including a statement in your work such as:
I yournamehere grant this nameofyourworkhere to the public domain.
This statement is a legal notice that your work may be freely used and distributed by anyone as he or she sees fit.
What if you don't want to prevent people from using or distributing your graphics by waving around your copyright, but you don't want to release your work into the public domain only to have some rogues claim your work as theirs? For one possible answer, let's look at the copyright notice on the Graphics File Formats Frequently Asked Questions (FAQ) listing that circulates on USENET:
This FAQ is Copyright 1994-96 by James D. Murray. This work may be reproduced, in whole or in part, using any medium, including, but not limited to, electronic transmission, CD-ROM, published in print, under the condition that this copyright notice remains intact.
This copyright notice includes a statement, called a license notice, that declares how the author intends the information in the listing to be used. And, as you can read, the author allows anyone to do practically anything he or she wants with the information in this listing, as long as the author is given proper credit as the creator and the maintainer of the listing.
What we have here is a copyright notice establishing ownership of a work which includes a written statement of what the owner of the work considers to be "fair use" of the copyrighted material. In this case, the author has all but placed the original information in the Graphics File Formats FAQ into the public domain; all he asks is that he be recognized for his efforts if the information contained in the FAQ is ever used. What a nice guy!
Note that you must be the owner of the work to explicitly copyright it or place it into the public domain. Willfully or unknowingly using or distributing a copyrighted work without permission of the copyright holder, for profit or for free, is a clear and prosecutable violation under the copyright laws. Your offense is even worse if your "use" of the material has hurt the commercial value of the property itself.
The owner of a copyright has several exclusive rights to his copyrighted work. Four of these rights that apply directly to the contents of graphics files include:
Can you get into trouble distributing graphics files that you do not own? You bet you can. Violating the exclusive rights of a copyright owner will earn you the exclusive title of "copyright infringer" by most countries on Earth.
Let's say you come across a nice photograph or piece of artwork in a magazine or on videotape, and you decide to scan or capture it, save it to disk using a popular graphics file format, trim some of the image away and maybe add a border, and upload it to a BBS or post it on USENET or another information service. By doing so you have infringed upon the copyright holder's reproduction rights (scanning or capturing the work and saving it), modification rights (altering the work using a graphical editor), and distribution rights (uploading the file and its reproduced work).
A court of law may award actual and statutory damages for such infringements, potentially ranging from tens of thousands to millions of dollars.
To stay out of trouble, you must assume that you do not have permission to copy, modify, or distribute any graphics files unless you have explicit permission to do so from the owners of the file's contents. Scanning a page from a magazine and storing the image in a file does not give you ownership of the image, only ownership of the file. The file's contents still belong to the holder of the copyright of the text, photograph, or artwork that you scanned.
Remember, the ownership of the graphics file itself is not the issue. You must always be aware of who owns and has the rights to the graphics file's contents.
By now you are probably wondering how you can include a copyright notice in a graphics file. Some file formats have a text field, often in the header, specifically reserved for a copyright notice; for example, TIFF, SPIFF, DPX, and PNG support such a field. Many formats support the storage of text comments in a user-defined data field; for example, GIF, IFF, and TGA allow text comments. Such comments are used to describe anything the file writer wishes, which is usually the contents of a file, the name of the author, and the copyright notice.
In formats that lack comment or copyright fields (e.g., PCX and BMP), copyright notices can find their way into areas of the file reserved for future expansion of the file format, or they can simply be tacked onto the end of the file itself. Neither of these methods is recommended, because they will surely cause some file format readers to report an error--or simply blow up--when they read such copyright-kludged graphics files.
In you can't use a format that properly supports the storage of a copyright notice, you should include an external file bearing your copyright notice and terms of usage and listing the names and descriptions of all of the copyrighted graphics files that you are distributing. This method has the advantage of making your copyright notice human-readable, which is helpful because very few graphics file viewers are able to display text comments embedded within a graphics file.
To summarize the facts of trademarks, patents, and copyrights applied to graphics files, remember that a file format specification, and the contents of a graphics file, can be protected by a copyright, but the graphics file itself cannot. And, until the federal courts rule otherwise, file formats--or more precisely, their contents--may be subject to copyright but not to trademarks or patents.
For more information on copyright, please refer to the Copyright FAQs found on the misc.legal, misc.legal.computing, misc.int-property, and comp.patents newsgroups, as well as the FTP sites:
Quite a few copyright discussions also occur on the comp.infosystems.www.* newsgroups.
For information about the Internet Patent News Service mailing list, send email to [email protected].
Information on patents, copyrights, and intellectual property may also be found at:
Patent, trademark, scientific, chemical, business, and news information
U.S. Patent and Trademark Office
Software Patent Institute
Transcriptions of hearing on software patents
Forms and information from the U.S. Copyright Office
Intellectual property law primer for multimedia developers
Copyright information for multimedia developers