Is it too late to patent your fractals?

In a previous post, Can you really copyright an Ultra Fractal parameter file?, I questioned the validity of copyright protection for parameter files.  I based this on my observation that what parameter files do is categorically different from what  image files do and more in keeping with the types of things the US Copyright Office excludes from copyright protection.

Some of those kinds of things that are excluded like procedures, processes, and methods of operation, are handled by patent law and not copyright law.  The different legal context arises from the differing nature of those two types of things:  for instance, you don’t copyright a procedure, you patent it.

If Ultra Fractal parameter files fall under patent law and not copyright law then anyone wanting to protect their work will have to get it patented –copyright won’t mean a thing because UF parameter files are not “copyright things”.  But acquiring patent protection is quite a different matter from copyright protection.  Copyright protection is automatic and only requires formal (i.e. paid) registration in the event that you actually want to take someone to court for infringement.  Patents always require official registration and most importantly:  fast registration!

After a year of your parameter file being publicly available, the Patent Office will not allow it to be patented.  It is no longer patentable because you’ve waited too long; your opportunity to protect your work has now officially expired!  Copyright is vastly different than this and it simply requires proof that you’re the author should it ever be questioned at some point down the road.  Official copyright registration will probably prevent it from ever being questioned but it’s not necessary and copyright protection now lasts for the life of the author plus an additional seventy years –well over a hundred years in many cases.

But patents only last for 20 years and in the case of design patents (ornamental design of a functional item), the duration is a mere 14 years.  Interestingly, 14 years was the original length of time for copyright protection when it was first created back in the late 1700’s around the same time as patents whose initial lifespan was also 14 years.  Copyright has been extended to almost ten times its original length while patent protection has remained pretty much the same.

Does it change your perspective on parameter files to view them as “patentable things” rather than “copyrightable things”?  It should because it will cost you between $80 to $300 to patent your parameter file and you’ve got to do it quickly.  But copyright, as almost every fractal artist knows, is free, automatic and 24/7.

Internationally, and fractal art is very international, patents are also much different than copyright.  Thanks to Mickey Mouse and his Disneyland gang, fractal artists get to stand under a huge umbrella of automatic and near endless copyright protection held up by the ever-strengthening arm of Mickey himself and whole-heartedly agreed upon by almost every nation via global trade treaties.  Your copyrights will likely still be in force when your grandchildren are around and you’re long gone: “Thanks for leaving us all your fractals, Grandma.  What are they?”

But the one-year window of opportunity for registering a fractal parameter file only applies to a few countries.  In Europe you must patent something before making it public, and in some countries, like New Zealand,  software patents don’t even exist because they don’t qualify as something that can be patented.  Just like copyright exclusions, there are patent exclusions too.

So if you want to patent your UF parameter files, the best strategy I can suggest is to at least register them with the Patent Office before posting them anywhere or even showing them to anyone.  Then you can officially say “patent-pending” when you post them to the UF mailing list.  But don’t say that if they aren’t being registered because it’s an offense to label something as “patented” or “patent-pending” when it actually isn’t.  Patents are a whole different racket than copyright.

So what happens when you don’t patent your work?  It’s a completely different scenario than copyright:  unpatented work automatically becomes Public Domainfree for anyone to use for any purpose they want!

Something to think about next time you get that urge to post a parameter file with a growling copyright warning and the stern words, “On-list tweaks only!”  You just might be giving it all away and it’ll be too late for:

…yeah, you know what.

14 thoughts on “Is it too late to patent your fractals?

  1. I don’t know if you’re intentionally ignoring the difference between the parameter file and the artwork itself, but that is the answer to all the issues you mention here and in the previous posts: no one is trying to own the parameters themselves, what they’re trying to protect is the fractals themselves. Granted, posting the parameter file to an open-for-all mailing list isn’t the best way to protect your artwork, and yes, “on-list tweaks only” isn’t really an officially binding statement at all, but that still wouldn’t give anyone the right to render the corresponding fractal that the parameters code for and claim authorship.

  2. Exactly. As the comments have pointed out, the UPR is a alternate form of the image. It really is just a list of numbers. Just like a song’s MP3 file. The MP3 can be used to generate the music. But even though the MP3 is just a file full of numbers, and not the actual song, it is still protected by the copyright of the song itself.

    And as far as the UPR being/defining a process, actually it doesn’t. No process is described by the UPR–those processes are described in the formula files. The UPR defines which processes to use (by naming them) and what numeric inputs to use.

  3. I think Jock’s analogy to an MP3 file falls flat. You can’t “tweak” an MP3 file without significantly destroying the content/art it represents. The same is true with an image/bitmap file — which was Tim’s initial analogy. Besides, as far as I can tell, no one is arguing that the coding itself of an MP3 file is copyrighted — or, more to the point, claiming explicit copyright privileges within the file itself, as folks on the Ultra Fractal Mailing List are doing.

    Esin is right that someone couldn’t use a UF par file and claim the image it produces as their own. Nonetheless, that doesn’t change the fact it’s the reproduced image that’s copyrighted, and not the par file itself — and the same dichotomy holds true for an MP3 file as well. But the UF List artists want to claim copyright of the file itself — an act that, as Tim shows, seems to fall more in the purview of patent regulations covering procedures and/or processes rather than pertaining to the copyright protection of (in this case) an art object.

    Furthermore, it seems clear to me that the UF List common practice of “tweaking” UF parameter files (whether offlist or on) indicates that fractal artists who approve of this practice do not consider UF par files to be intellectual property deserving of copyright protection. Would UF List artists be as glib about “tweaks” made directly to their images by other artists using Photoshop? I bet not. And why would that be? Perhaps because of the general sense that images are clearly copyrighted, but par files are something altogether different — especially when one is openly encouraged to use such files however one pleases?

  4. As I said in a comment on the previous post, I still think this whole debate stems from a misunderstanding. The copyright notice on the parameter files are simply non-encrypted blueprints to indicate the author of the original *image*, not the parameters. The fact that they’re written within the parameter doesn’t mean they refer to the parameter. The name of the image is also written in the parameters, but you wouldn’t say that that’s the name of the parameter set – it’s the name of the image. It’s just the format. So again, no one is claiming copyright on parameters, so I feel like we’re discussing a non-issue here.

    As for the photoshop tweaking, you’re right, there *is* a discrepancy there, but aside from the purism that has infected the majority of the fractal community, that’s probably because the point of the tweaks is usually helping (or bragging to) each other about technical issues on the program, not the artistic side of things, so photoshop would not be relevant to that. I should say though that I’m not a member of the mailing list, I’m just guessing from what I’ve seen on deviantart (which includes pretty much the same people, I imagine).

  5. I would have thought anyone knowingly runs a risk if a valued upr file is published for others to use or inspect, whether via the “List” or elsewhere. This is surely, generally acknowledged and the root purpose of List activities is educational in the best sense of the word. The skilled members are almost invariably willing supporters when beginners or others have problems. Even the “tweaking” process is intended as a part of this learning process though more seasoned members can be differently motivated when tweaking amongst themselves (and why not?).

    I discern an agreement is emerging that the images themselves are subject to copyright but even this is of doubtful value whilst fractal art as a whole is struggling to find commercial viability. A lucrative commercial recognition of a few fractal artists would make their digital files increasingly more valuable and protection against hacking could then become a precautionary need for the upr files are the source of ultimate quality. Proof of ownership of these files is thus the key defence against theft if disputes arise. This alone makes the upr file of vital importance in defining the originality upon which ownership (copyright) relies.

    Thus we have a situation where the upr file contains the essential originality imparted by the fractal artist. The source of disputable theft begins there so surely copyright has to begin at a similar stage and is thereafter sustained in whatever way the artist chooses to see it used – whether on the monitor screen, in print, or whatever. This right once made existent continues even if the initiating upr file is lost or is made unusable. Commonsense suggests copyright law (funny, my fingers preceded “law” with an “f”) will need to clarify or adjust at some time to accommodate any present uncertainties.

    Prints acquire a uniquely, essential quality in our digital environment. They enable the obvious commercial possibilities but are themselves capable of perfect reproduction. This is unlike the one-off oil painting or watercolour etc produced by the non-digital artist. Traditionally the original work of such an artist is automatically protected by copyright, but is this so for commercial prints of the original? I’ve already made the point that even copyright of an original work in a traditional medium stays with the artist when it is sold and this has to be increasingly so when multi-prints are made of an original. I haven’t studied the matter but I imagine the artist gives limited rights to the publisher of any prints so it is reasonable to assume the digital artist retains copyright in any prints produced by himself (and limited rights can be similarly ascribed by artist to publisher if the need arises).

  6. Esin — You say: “No one is claiming copyright on parameter files, so I feel we’re discussing a non-issue here.” But, in fact, many folks on the UF Mailing List are directly claiming copyright privileges for their par files. Why bother to make a copyright notation in a par file if one is not asserting protection of one’s intellectual property? Some of these same artists will take an additional step and place copyright protection information on their images as well. Such behavior suggests that they view par files and images as separate objects — each deserving of personal copyright. Also, why people choose to “tweak” — whether for learning curves or technical investigation or bragging rights — is irrelevant to the central quandary Tim raised. Images are art objects with an established record of copyright protection. Par files seem to more closely fit the description of procedures/processes covered by patent regulations.

    Cliff — I have trouble following some of your points. I said nothing about why some UF artists choose to engage in “tweaking,” nor did I question their presumably noble and educational reasons for doing so. What I said was that “fractal artists who approve of this practice [“tweaking”] do not consider UF par files to be intellectual property deserving of copyright protection.” If, as you claim, “proof of ownership of these files is thus the key defence against theft if disputes arise,” then why would any sensible artist deliberately make their files public and openly agree for them to be altered? If easily edited par files are so valuable against thievery, then why lob them out on the Web and invite appropriation? Such an act is counterintuitive, unless one is convinced par files are not copyright protected.

    Furthermore, in a related point, since many par files are freely distributed online and can be so easily modified, such files would not seem to provide additional evidence of ownership for enhanced copyright protection. Again, the same question arises. Why would numerous UF artists allow their UPR files, which you claim are of “vital importance,” to be circulated online and “tweaked’? Doesn’t such conduct make their art more vulnerable to being stolen?

    You also question whether commercial prints are “automatically protected by copyright.” Original prints — especially when numbered and signed by the artist — would fall under the copyright area of “pictorial, graphic, or sculptural works including fabric design.” Photographers have been enjoying copyright protection for their original/commercial prints for quite some time. Why would fractal and digital artists not be entitled to the same, longstanding tradition of copyright protection for their prints?

  7. “Prints acquire a uniquely, essential quality in our digital environment. They enable the obvious commercial possibilities but are themselves capable of perfect reproduction. This is unlike the one-off oil painting or watercolour etc produced by the non-digital artist. Traditionally the original work of such an artist is automatically protected by copyright, but is this so for commercial prints of the original?”

    That’s a little like asking whether an author’s published books are protected by copyright, since books are mass-produced from an original copy and anyone who knows how to read it can reproduce it with minimal difficulty. The answer is, obviously, any reproductions of a copyrighted work are still covered by copyright.

    Copyright law is automatic and covers almost anything created by you (Tim’s previous post outlines what can and cannot be copyrighted). You are allowed to reproduce it as many times as you like, and it still belongs to you – the exception being, of course, if you sign away your copyright to someone else (for example, in the case of books, if you sign away the exclusive copyright to your novel to the publisher).

  8. The copyright notices on the parameter files are not inserted by the artists – they’re automatically inserted by the program, using the name people used to register for the program. Maybe that’s what caused the misunderstanding. The copyright notice on the parameter set is the only way to keep track of authorship (since the fractal might not have been rendered as an image at that point but still is a unique creation of the artist). The fact that it’s not encrypted like the rest of the information in the parameter file shouldn’t change the fact that it’s an automatically generated information that’s attached to the image. Think of it as part of the EXIF data of fractals. It’s very different from the copyright notice on images that the artists choose whether to include.

    And I only mentioned tweaking and photoshop because you brought it up, it wasn’t in reply to Tim’s post but to your comment. My point there is that people might let people tweak their parameters (in UF) and not their rendered images (in Photoshop) because they usually tend to share parameters for their scraps and their technical experiments etc., not for what they tend to render and share as images which they consider their “artwork”.

  9. Hi Terry,

    It was Esin who expressed an unfamiliarity with the UF List, and hence with its fundamental objectives – my apologies for the confusion.

    As to the par files it is my contention anything of value should be kept private and this point was hinted in the first sentence of my comment (“I would have thought anyone knowingly runs a risk if a valued upr file is published . . .”). It is may also be useful to draw attention to Madelon Wilson’s response to Tim’s 19th October entry where she stresses the dangers of uploading anything of value to the Internet.

    Where the copyright chain currently begins is possibly argumentative when the laws were formulated in the pre-digital age but I still contend the individuality of the artist first expresses itself when the upr (or ufr if you wish) file comes into existence and everything subsequent (print, modifications etc) would be similarly bound. If the courts find otherwise then commonsense indicates the law has to be changed.

    As to the final paragraph of your response I feel we are in agreement. The copyright of prints of whatever quantity remains with the artist and independent publishers should be protected by consents of some kind.

  10. I think you guys are a bit off the track on the way you are viewing the copyright notices on parameter files. Any user group of an image producing software is in the unique position of being able to share their “source files”. That is, the file that contains all the data required to reproduce the image exactly the way the original artist created it. In the case of Ultra Fractal Frederik Slijkerman included a Comment field where the author of the work could include information about their intentions for the “image” the source file produces. It’s no different than displaying an image on your website and including a copyright notice with it, or watermarking an image, or including a signature directly on the image. It’s just another way to keep both the image itself and the original author’s copyright notice together in the file.

    If a work is an original work of authorship it is copyright protected in all of it’s forms. Whether it be a jpg displayed on a website, a hard copy picture hung on a wall, an image in a calendar, or contained in a parameter file. The copyright owner is fully entitled by law to set the limits of what other people can, and cannot, do with their work. So when an artist includes a notation such as “On-list tweaks only” they are simply setting the limits of what the other members can do with the “image” they are about to see. In this case the author is allowing them to make changes to the image and send the results back to the list, period! They cannot use the work beyond that scope. For instance, they cannot render the tweak into an image, upload it to their website and claim copyright on it without securing permission from the author.

    Now let me present a hypothetical scenario and ask Tim and Terry to give their opinion on this. Let’s say that someone decides to write a book all about Ultra Fractal as a tutorial guide for new users. The book is going to be published online. One of the things the author wants to include is the uncompressed text version of one of their own parameter files, to teach the reader how parameter sets are structured and how UF uses the information to render the image. In your opinion, in that form would the parameter set be copyrightable to protect the resulting image?

  11. . . . . Cindy Meyers wrote:
    . . . ‘In your opinion, in that form would the parameter set
    . . . be copyrightable to protect the resulting image?”

    Definitely not, otherwise there would have been many law suits filed over the years from what others have published in their own “tutorial” books about fractals:
    • On how to program code.
    • On what formulas to use.
    • On how to make palettes and gradients.
    • On using special “transformation” algorithms.
    • On specific parameter data to create certain images (BOF60 and BOF61).
    • Etc……….

    .

  12. Further to Cindy’s question, are you agreed the online manual itself is protected by copyright. If so should not this copyright extend to the entire contents?

    As to the general discussion, is the screen image protected by copyright? If so how is the screen image first brought into being by the artist? In this digital world the image is usually first given an intentional individuality by interaction between monitor screen and artist. It becomes what it is at the direction of the artist. Thereafter it is for the artist to decide whether to print, store, discard, or make available to others in digital form, and this seems to me to be the essence of copyright law – to protect the interests of the artist concerned. The parameter file and screen image are simultaneous products and one dependent on the other. . The parameter file registers both the method of production, and the optional means of storage within computer for future use – but usage = image.

    Apologies if I intrude again, but thanks to everyone for provoking or embellishing such an interesting discussion.

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