Trade Dress

"Some U.S. courts do not consider 'real-life' photos as a subject for copyright protection."

Tell that to a professional photographer and see what reaction you get.

Didn't Apple lose a case over this patent?

Yes, Apple lost (or settled) a lawsuit to Creative, who had patented the menu structure used by iPods.

I cannot believe the gall of this lawyer to suggest that icons and photographs are not copyright protected. Where did this guy get his degree? A crackerjack box?

A lawyer receives their instructions their his clients. The client of this lawyer, or he may work in-house, has engaged him to represent them in a particular matter. Such behaviour is not unusual. It happens in every legal action.

Sometimes, the law does not accord with what we consider to be common sense. It may accord with what others call common sense. It may also not seem to be linked with reality. But that is why lawyers are instructed. They understand the law and know how to argue a case.

So it is not surprising that this lawyer might suggest that icons and photographs are not copyright protected. It is more likely that his argument is more subtle. A court submission would probably contain greater complexity. However, that he advocates for his client is does not strike me as odd. I am not in a state of disbelief as to his 'gall'.

It is also unlikely that this lawyer got his degree from a 'crackerjack box'. Whatever one of those is. I suspect it is a negative term. Of course, the lawyer could say the opposite of what his client wanted. That might harm his client's action. Perhaps at that point, it might be relevant to question if he obtained his degree from a crackerjack box.

> A lawyer receives their instructions their his clients.

This should read, 'A lawyer receives their instructions from their clients'.

Please excuse the slip.

Look up Cracker Jack in Wikipedia if you don't get the (U.S.) cultural reference.

On the point of this dude representing his client, it sounds from the article as if he doesn't have a client and is persuing this as an academic exercise (not that there's anything wrong with that, assuming he's willing to pay court costs when/if he loses).

This is a publicity stunt, plain and simple. Ignore and move on...

This lawyer is his own client. He openly claims he is not the author of the software, and that he is releasing the software to the public. In other words, this guy isn't representing anyone so his argument is his own.

Moreover, being a lawyer myself, I can tell you that a lawyer does not receive legal instructions from his client. The client might say I want to do this or that, but the lawyer has to operate in the framework of the law and cannot just do whatever the client wants. If you make up unreasonable arguments, you could get fined and have to pay the other side's legal fees. That happened to a lawyer suing Google recently.

With all that said, I wouldn't hire this guy to represent me. He is correct that the hierachy menu may not be copyrightable. He might also be correct that the iPhone knock off source code itself does not infringe upon Apple's copyright.

However, the guy is way off base on the icons and desktop not being copyrightable. The big Apple versus Microsoft case that Apple lost was essentially about Apple's GUI, including its icons. In the case, the judge found Apple's GUI was copyrightable, but Microsoft was not infringing on Apple's copyrights because Apple licensed the use of its copyrights to Microsoft. Moreover, the judge found HP infringed upon Apple's trash can and folder icons. That case matters because it is an Appellate Court case from the Circuit Apple would sue this guy in.

Finally, this guy cites some lower level case regarding pictures, and tries to pass this off as the law. Any good lawyer will tell you that you do not cite lower level cases to the judge, but Appeals Court and Supreme Court cases. Those are the courts that matter.

Moreover, the lawyer misinterpreted the case he cites. The court there did not find that pictures of real life were not copyrightable. Such a finding would be absurd. Instead, the court said the photos at issue were not mildly original and thus did not qualify for copyright protection. In my view, that conclusion was erroneousness and would be overturned on Appeal, but the point is the court did not find what the guy claims.

Do not get me wrong, the guy probably wouldn't be fined if he was representing a client. The guy, however, most likley would not win either, and if he had a cleint, the client would owe Apple's money for copyright infringement and maybe attorney fees.