## Facts

- Jaslow Dental Laboratory, a dental prosthetics manufacturer, sought a custom computer system to manage billing, accounting, inventory, and related laboratory functions.
- Elaine Whelan, then working with a software developer, created a program called Dentalab (delivered in 1979), written in EDL for an IBM Series/1 system.
- Ownership of the software remained with the developer; Jaslow Lab helped market the program in exchange for commissions. Whelan later formed Whelan Associates and acquired rights to the program.
- In 1982, Jaslow formed Dentcom, Inc. and developed a competing program for IBM PCs, written in BASIC, marketed as a successor to Dentalab.
- Whelan alleged that, despite different code and a different programming language, the competing program copied Dentalab’s non-literal “structure, sequence and organization” (SSO).
- After related disputes (including a state action by Jaslow Lab alleging trade secret misappropriation), Whelan brought a federal copyright action alleging infringement.

## Issues

1. Whether copyright protection for a computer program extends beyond literal source code to the program’s non-literal “structure, sequence and organization.”
2. Whether the defendants’ competing program was substantially similar to protected elements of Dentalab so as to constitute infringement.

## Decision

- The Third Circuit affirmed the judgment for Whelan Associates.
- The court held that copyright protection may extend beyond literal code to a program’s SSO.
- The court concluded there was sufficient evidence that the competing program was substantially similar to Dentalab in protected non-literal elements, supporting the infringement finding.
- The court rejected arguments that the similarities were entirely dictated by functional requirements or other constraints.

## Legal Principles

- Copyright protects original expression, not ideas; for utilitarian works, the “idea” is the work’s purpose or function, while elements not necessary to that purpose may constitute protectable expression.
- A computer program’s non-literal design choices—such as overall structure, sequencing, and organization—can be protectable expression when multiple implementations could achieve the same function.
- Substantial similarity may be shown by similarities in non-literal elements (e.g., file structures, outputs, subroutines) together with evidence of access and expert analysis distinguishing expressive design choices from functional necessities.

## Conclusion

The court held that software copyright can reach beyond literal code to protect a program’s structure, sequence, and organization when those features reflect expressive design choices rather than functional necessity, and it affirmed liability based on substantial similarity in those protected non-literal elements.


Whelan Assocs., Inc. v. Jaslow Dental Lab., Inc., 797 F.2d 1222 (3d Cir. 1986)