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Copyright Protection for Software

July 4, 2022
Beverly A. Marsh

Clients often want to know how they can best protect their software. The answer usually lies in a combination of different forms of intellectual property, including copyrights, patents, and trademarks. Whereas patents protect inventions (how it works, what it does) and trademarks protect brands, copyrights protect original works of authorship. Works of authorship, often referred to as just “works”, are forms of expression and by definition do not include any ideas, processes, concepts that underly those works. For example, in the art world an idea might be a bowl of peaches on a table, and a work of authorship an artist’s painting of the bowl of peaches. In the software world an idea might be a phone app that displays the weather. A related work of authorship is how a developer creates their version of an app that displays the weather, including their original source code, design layouts, textual content, images, and graphics.

Under U.S. law, copyright exists the minute an original work of authorship is created in a form that can be reproduced. However, registration of a copyright with the U.S. Copyright Office gives the author the ability to enforce their rights through the Federal court system. That is, without a copyright registration a federal copyright infringement lawsuit generally cannot be filed. Registration prior to an act of infringement may also entitle the author to statutory damages and attorneys’ fees in court if infringement is proven, which is typically more desirable for obtaining monetary damages than having to prove a case for actual damages. Accordingly, many clients find that having their copyrights registered give them far more clout when asking infringers to cease and desist from their activities outside of the courthouse as well.

Most newly-developed software has at least some original work of authorship that can be protected under copyright and registered with the Copyright Office. Source code is perhaps the most prominent type of work of authorship. Source code includes the written commands that a programmer writes to dictate what a computer does when the commands are executed. Copyright registration of the source code in a software application can help an owner seek legal relief if the code is copied in part or in whole by someone else without authorization. Protecting source code is particularly beneficial if software will be offered to others in a manner that would allow them to view or otherwise access the underlying source code.

Obtaining a registration for source code can be a little complicated depending on the circumstances. A registration will not cover any code that is in the public domain or code that was owned by a third party. Accordingly, such portions of source code must be identified and disclaimed when applying for a registration. Another complication that can arise is due to the public nature of copyright application submissions. That is, every copyright application for software requires a deposit, and while it’s not easy for third parties to obtain copies of deposits from the Copyright Office, it can be done. Accordingly, the Copyright Office provides a variety of options on how to deposit source code that contains trade secret information, some of which allow for redaction or even complete omission of the trade secret information. However, at least some portion of the code does have to be submitted as a deposit.

Documentation related to a software program can also be protected by copyright. This may include any user manuals or instructions. Depending on the circumstances, documentation may be submitted in the same application as source code, or it may be subject to a separate application for copyright.

Visual, audio, and audiovisual aspects of software may be copyrighted as well. These include pictures and graphics that appear in the software, video clips, and even overall screen layouts. In order to properly apply for copyright registration, each separate work requires consideration of who the author or authors are, who the owner of that work is under the law (whether it is the author(s) or someone else to whom there is an obligation to assign), publication dates, and more. Like related documentation, in some instances, audiovisuals generated by the software can be filed along with the source code, or may be filed for separately.

We find that issues of copyright pertaining to software can be complex, especially if there are multiple organizations contributing to the software or the software uses pre-existing code authored by others. It is important to properly apply for a registration, as copyright registrations with infirmities can be subject to attack and even invalidation in litigation. Accordingly, seeking a registration for one or more aspects of a software program often requires a detailed analysis of all the parties involved, their contributions, ownership, and pre-existing content that needs to be disclaimed.

If you have questions regarding inventorship of an invention, seek the advice of your patent attorney.