Copyrighting software gives the author the exclusive right to make copies, prepare derivative works, distribute copies, and display the software publicly. A copyright gives the author protection for 95 years from the date of publication or 120 years from the date of creation.

How Do I Determine Whether My Software Is Copyrightable?

As long as software code is an original expression of an author's mind it may be copyrighted. But copyrights do not protect functional elements of software, only expressive elements. When deciding to copyright all or part of a piece of software, authors must separate out what are the functional and expressive aspects of their software. Separating out non-copyrightable code can be done by filtering:

Filtering/Distillation:

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

What you have left after filtering may actually be an extremely small amount of information in relation to the whole of your program. The "leftovers" will establish the boundaries of protected intellectual property in any subsequent infringement suit.

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

In general most software with truly artistic elements is going to be at least partly copyrightable. Like other areas of copyright law, the more original the work is, the more likely it can be copyrighted.

Some areas of software simply cannot be copyrighted. Methods of operation (e.g., menu commands) are generally not copyrightable unless they contain groundbreaking or artistic elements not seen before. Likewise, a Graphical User Interface (GUI) is not copyrightable unless it contains some truly expressive elements.

Should I Consult a Lawyer about Copyrighting My Software?

Determining what parts of your software can be copyright is often very difficult. An experienced intellectual property lawyer can help you pick out the copyrightable parts of your code. An IP attorney can also help you file the necessary paperwork to obtain a copyright.