Copyright protection can be used to protect outright copying of the code behind an app, as well as artwork in various screens.
Note that copyright protection is possible even if a patent application is filed.
Copyright protection for smart phone apps is created automatically when software is fixed in a tangible medium. Therefore, copyright notices should always appear in screens.
Although copyright arises automatically, there are many significant benefits to registering a copyright, and the costs are low. A registration is necessary to bring a suit. More importantly, it may be possible to obtain statutory damages and attorneys fees if a registration was obtained within a certain time period (see 17 U.S.C. Section 412). You should register no later than three months after publication and before learning of infringement. If you decide to file an application to register the copyright in the code to your smart phone app, which will typically contain trade secrets, you must choose from the options below (see Circular 61 available from the Copyright Office):
- File the first twenty five and last twenty five pages of source code with portions containing trade secrets blocked out;
- File the first ten and last ten pages of source code alone, with no blocked out portions;
- File the first twenty five and last twenty five pages of object code plus any ten or more consecutive pages of source code, with no blocked out portion; or
- For programs fifty pages or less in length, file the entire source code with trade secret portions blocked out.
You typically want to include enough information to be able to prove copying, while giving away as little trade secret information as possible. It is difficult to say if any of the above options is preferable over another. The risk of supplying source code to the Copyright Office is that a skilled programmer may be able to figure out the program, and may even be able to code the software in a sufficiently different manner so as to avoid copyright infringement.
It is suggested that you may include some red herrings in the code to assist in proving wholesale copying. For example, include some code that does nothing other than an unnecessary loop, or code that can never be reached and processed by the computer.
You must decide whether or not to include screens in the smart phone app copyright application. Copyright in computer code may cover screens generated by the code even if printouts of the screens are not submitted to the Copyright Office. The Copyright Office typically examines screens, if submitted, for copyrightability and may give an undesired opinion that a particular screen is not capable of copyright protection. A court may later defer to this opinion, and it is preferable not to have such an opinion from the Copyright Office.
An important issue regarding copyright law is that of ownership. Although not always practical, it is legally preferable that only employees write any code. Employees should be subject to employment agreements in which they agree to maintain in confidence any trade secrets or know how. If any independent consultants are used to write code, agreements should be put in place in which they agree to transfer all ownership in any copyrightable work they create, and in which they waive so called “moral rights” of integrity of their work and of attribution.
In summary, copyright registrations are inexpensive and should always be considered, particularly if there is not a sufficient budget for patents. Registration provides important benefits of the possibility of obtaining statutory damages, without having to prove actual damages, and attorney fees. Registration must take place before certain deadlines to obtain these benefits. Copyright will not protect against independent invention and is only likely to provide protection against fairly identical copies. Copyright can be avoided relatively easily whereas patents provide strong protection for general concepts.