Copyright Protections for Computer Programs
Under the United States Copyright Act, copyright protection is provided to “original works of authorship fixed in any tangible medium of expression.” 17 U.S.C. § 102. It has long been uncontroversial that copyright protection may apply to both the source code of a computer program as well as the audiovisual elements of a computer program. This is true for virtually all types of computer programs, from videogames to business software. See Whelan Associates, Inc. v. Jaslow Dental Laboratory, Inc., 797 F.2d 1222 (3rd Cir. 1986) (regarding business management software); Atari, Inc. v. North American Philips Consumer Electronics Corp., 672 F.2d 607 (7th Cir. 1982) (regarding videogames).
However, copyright protection, especially for programs that perform useful functions, can be thin. See Lotus Development Corp. v. Borland Intern., Inc., 49 F.3d 807 (1st Cir. 1995) (no copyright infringement in the copying of the menu and command structure of a spreadsheet program with 469 commands and more than 50 menus and submenus). This is because of the nature of what copyright law does and does not protect. Copyright protects original portions of works that have at least a minimal degree of creativity. Copyright does not protect facts, ideas, or utilitarian aspects of a work. Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340 (1991); 17 U.S.C. § 101.
The general rules regarding how copyrights accrue and the remedies for infringement apply to computer programs. Thus, a work receives copyright protection as soon as it is created, even if the author does not register the work with the United States Copyright Office. However, for the owner of the copyrighted material to commence an infringement lawsuit against unauthorized users, the owner must first obtain a copyright registration. Registration can occur after the infringement incurs so long as the lawsuit is not initiated prior to the registration. Fourth Estate Public Benefit Corporation v. Wall-Street.com, LLC, 139 S.Ct. 881 (2019).
Furthermore, certain types of statutory damages as well as attorneys’ fees are only available if the application for a copyright registration was submitted within three months of publication or prior to when the infringement occurred.
How to Apply for a Copyright Registration of a Computer Program
Although computer programs and videogames contain both source code as well as screen displays, if both are being registered, the Copyright Office considers them to be components of the same software program, requiring one registration for the entire program. To obtain copyright registration for a computer program, application, or videogame, one would generally follow the steps listed below.
Step 1: Choose how file the registration with the Copyright Office
Generally, the easiest way to file an application for a copyright registration is on the Copyright Office website. However, one may also submit the application on a paper form, which can be obtained by requesting the form from the Copyright Office. Filing online results in faster processing and allows for online tracking of the registration application. Also, at this time the fee for a standard online application is $65, while the fee for a standard paper application is $125.
Step 2: Fill out the application form
The application form will ask for several items, including specifying the nature of the copyright registration. Under “Type of Work,” there are several designations one can choose from. Only one option may be selected. Generally, a program would be registered as a “literary work” if it is primarily text-based. If the program’s display contains many graphics or pictures, it could be more appropriate for it to be registered as a “visual arts work.” For a program that contains significant audio-visual components, such as a video game, it may be best to be registered as a “motion picture / audiovisual work.”
For the “Author” field, if the program was a work for hire, generally the name of the employer who owns the rights to the program should be listed. Other information needed to complete the form include the title of the work, the year and date of publication, and whether the work has been previously published.
Step 3: Submit a deposit of the work to the Copyright Office
When filing the application for registration through the Copyright Office website, the filer will be asked to specify the format in which to submit the work. If the program has not yet been published and the filer is filing the application electronically, one can submit a copy of the source code in which copyright is sought electronically as a PDF document. If the code is more than 50 pages in length, the filer may submit only the first 25 pages and last 25 pages of code. However, if the program has already been published, a hard copy of the code should be submitted.
If the code contains trade secrets, the filer can block out any code in which trade secrets are found. However, the filer must submit a letter stating that the code contains trade secrets.
If the filer wishes to register the audiovisual displays of a videogame, the filer should submit the material on a CD-ROM or DVD. (This is required if the program has been published.) The registrant may submit graphics and screenshots of images that he or she wants to specifically highlight in the registration. This is especially important if the program is not yet on a fixed medium such as a DVD that can be submitted to the Copyright Office.