Copyright Protection for Software

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 What Is A Copyright?

In legal terms, a copyright is a form of legal protection that falls under the umbrella of intellectual property law. The term intellectual property (“IP”) refers to property rights that are vested in intangible properties. A copyright is the legal right under intellectual property laws that prevents others from using a copyright holder’s originally authored work.

Copyright is similar to trademark law, which covers logos and brand names, in that they both protect the ideas of inventors. It is important to note that the item or work that is to be copyrighted should be an original work, and cannot be a reproduction or copy of property that has already been copyrighted.

Under federal copyright law, a copyright entitles the owner of the copyrighted work to many exclusive rights and protections, such as the right to:

  • Reproduce their copyrighted work;
  • Distribute copies of their copyrighted work to the public for sale;
  • Exclusively perform their copyrighted work;
  • Produce a license derived from their other copyright materials; and
  • License their rights in order to manufacture and make a final product.

Examples of the most common examples of creative work that copyrights can protect include, but may not be limited to:

  • Recorded music, music compositions, or sheet music;
  • Books, photographs, and novels;
  • Software codes, video games, and CD-ROMs. It is important to note that these may not be protected if they have already been distributed through a copyleft agreement; and
  • Other various forms of art, such as paintings, plays, dance choreography, sculptures, and scripts.

Under the federal law, an inventor receives a copyright to their work automatically once they have “fixed” their original work in a “tangible medium of expression.” Once again, the inventor must have independently created the work, and not adapted it from something else. Importantly, the inventor’s idea or work must be placed in a sufficiently permanent medium so that others are able to reproduce, view, communicate it, and/or otherwise be aware of its existence.

This means that copyright protection becomes available the moment that an inventor fixes their work in a tangible form, without the inventor having to perform any additional steps. Once an invented work fixed in a tangible medium has copyright protection, the inventor or creator will then be able to decide who can use their work and for what purposes their work can be used. Additionally, once their work is protected, no one else can use the work without the creator’s permission.

Why Should an Individual Copyright Their Software?

Although an inventor of software automatically has a copyright upon saving their software on their computer or data stick, registering software with the United States Patent and Trademark Office (“USPTO”) still has many benefits.

For example, copyrighting and registering software with the USPTO gives the inventor the exclusive right to make copies, prepare derivative works, distribute copies, and display the software publicly. A copyright gives the copyright holder protection for 95 years from the date of publication or 120 years from the date of the software creation.

The main reason for registering a copyright with the USPTO is that registration is necessary in order to enforce many of the protections that are offered by copyright law. Copyrighting and registering software allows the inventor the following additional rights:

  • Initiate Copyright Infringement Lawsuits: Registration of a copyright is necessary if an inventor is a U.S. citizen or legal resident with a work that was first published in the U.S. if the inventor wants to initiate a copyright infringement lawsuit;
  • Presumption of Validity: Another one of the main reasons to register a work with the USPTO is that the date of the application provides a date in which the copyright is considered valid. This means that it is easier to prove when your work was created and others were put on notice;
  • Statutory Damages: if an inventor is successful in their copyright infringement lawsuit against someone infringing their work, they may receive special statutory damages without having to prove any fiscal harm;
  • Attorney Fees: Registration of a work with the USPTO allows the inventor to recover attorney fees in their infringement lawsuit; and
  • The Work Is Registered in the Official USPTO Database: Once an inventor’s work is registered with the USPTO, any other individual who wants to use their work will be able to search for the work in the USPTO database. This will help others be able to contact the inventor and seek permission or licensure for the work’s use.

As can be seen, there are numerous benefits in registering software with the USPTO, with the main benefit being the ability to succeed in a lawsuit for copyright infringement.

What Is Copyright Infringement?

Once again, there are a number of reasons why an inventor should formally register their copyright. While their work does have automatic copyright protection once it fits the above requirements, they are still limited in their legal remedies if you do not properly register the copyright. One of the legal remedies available to registered copyrights is the ability to initiate a lawsuit for copyright infringement.

Copyright infringement occurs when a person violates any of the exclusive rights of the copyright holder. For example, one exclusive right of a copyright holder for software is that only they can use that particular software for any purposes, including for profit purposes. As such, if another person or company attempts to utilize the software for profit, that infringing party could be held liable for copyright infringement. Another example would be when an individual incorporates the software into their code and sells the completed product without permission from the copyright owner.

Penalties for copyright infringement may include civil charges for lost profits from the sale or licensure of the software, as well as other consequences such as confiscation of any and all unauthorized material. Federal charges and special statutory damages may also apply in some infringement cases for registered works.

How Do I Determine Whether My Software Is Copyrightable?

If a software code is an original expression of the inventor’s mind and is fixed in some sort of tangible medium, it may be copyrighted. It is important to note that copyrights do not protect the functional elements of software, only the expressive elements. Therefore, when deciding to copyright all or part of a piece of software, inventors of the software must separate out what are the functional and expressive aspects of their software.

Separating out non-copyrightable pieces of software code can be done by:

  • Separate out the elements of the software dictated by efficiency. That is to say if there is a simple and efficient shorthand way of writing source or object code, then that element of the software may not be copyrighted;
  • Separating out the elements of the software determined by standardizing factors. That is to say if there are certain elements of the software that are dictated by external factors (e.g., accommodating input/output devices, such as the QWERTY keyboard), then those elements of the software may not be copyrighted;
  • Separating out the parts of the code taken from the public domain; and
  • Separating out any other parts of the code that are not expressive or original.

After separating out the above pieces of the software, what remains after filtering may only be an extremely small amount of information in relation to the complete software. The remaining pieces of information will establish the boundaries of what information of the software is protected intellectual property in any infringement suit.

What Types of Software Am I Going to Have the Most Trouble Copyrighting?

In general most software involving an original work is going to be copyrightable. Similar to other areas of copyright law, the more original the software is, the more likely it can be copyrighted.

However, some areas of software simply cannot be copyrighted. For example, methods of operation, such as menu commands or interactions are generally not copyrightable unless they contain some groundbreaking or original artistic element that has not been seen before. In the same way, a Graphical User Interface (“GUI”) is not copyrightable unless it contains some truly original and expressive elements.

Do I Need an Attorney for Help with Copyrighting My Software?

As can be seen, determining what parts of software can be copyrighted is often a challenging matter. Therefore, if you have invented an original piece of software, it may be in your best interests to consult with an experienced copyright lawyer.

An experienced attorney can help you determine the copyrightable parts of your code. Further, a copyright lawyer can also initiate an infringement lawsuit on your behalf, and represent you in court, as necessary.

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