Copyright Law

Below is the basis information about copyright law. On this practice page outline, we are only including copyright law related content that is relevant to information technology software. We will include other content related to copyright law down the road on “research page,”  of this website. Please contact us by email or phone, and make an appointment, if you would like to discuss further about any copyright law matters.


“Copyright law protection [exists for] … original works of authorship fixed in any tangible medium of expression…
[where] they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”
17 U.S.C. § 102 (a).

“Works of authorship include the following categories: (1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.” 17 U.S.C. § 102 (a).

“… [C]opyright law protection for an original work authorship … [do not exist for] any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” 17 U.S.C. § 102 (b).

In plain terms, “copyright law protects tangible, original expressions of [such things], not [those things] themselves.” Kepner–Tregoe, Inc. v. Leadership Software, Inc., 12 F.3d 527, 533 (5th Cir.1994).


Copyright Registration

“… [Copyright registration] is not a condition of copyright protection.” 17 U.S.C. § 408(a).

“Deposit for Copyright registration: … [T]he material deposited for registration shall include—
(1) in the case of an unpublished work, one complete copy …;
(2) in the case of a published work, two complete copies …;
(3) in the case of a work first published outside the United States, one complete copy …;
(4) in the case of a contribution to a collective work, one complete copy ….” 17 U.S.C. § 408(b).

Duration:  “Copyright in a work created on or after January 1, 1978, … endures for a term consisting of the life of the author and 70 years after the author’s death.” 17 U.S.C. § 302 (a).

“In the case of an anonymous work…or a work made for hire, the copyright endures for a term of 95 years from the year of its first publication, or a term of 120 years from the year of its creation, whichever expires first.”  17 U.S.C. § 302 (c). 

Registration for civil infringement action purposes

“…[N]o civil action for infringement of the copyright in any United States work shall be instituted until… registration of the copyright claim has been made…” with the Copyright Office. 17 U.S.C. § 411(a).

In plain terms, in order to institute an infringement action against parties for unauthorized use of copyright purposes, a copyright registration is a must. However, you do not need a copyright registration for protection of your work under the United States law.

Copyright law topics relevant to Information Technology Software

Computer program definition under the copyright statute: “A ‘computer program’ is a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.” 17 U.S.C.§ 101.

Treating the “underlying source code as a literary work,” gives the computer program copyright law protection.

Derivative work definition under Copyright statute: “A ‘derivative work’ is a work based upon one or more preexisting works, such as a translation…abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a ‘derivative work’.” 17 U.S.C. § 101.

Digital Millennium Copyright Act (DMCA): This law provides statutory protection to owners of the copyright from third parties who may circumvent technological measures to unlawful copy material.

Defenses available for copying

Fair use: “…[T]he fair use of a copyrighted work, including such use by reproduction in copies… for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” 17 U.S.C. § 107.

Fair use factors:
“(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.” 17 U.S.C. § 107.

Fair use is an “affirmative defense,” available under copyright law. Campbell v. Acuff–Rose Music, Inc., 510 U.S. 569, 590 (1994). The burden is on the party to come up with evidence asserting fair use.  Am. Geophysical Union v. Texaco Inc., 60 F.3d 913, 918 (2d Cir.1994).

First sale doctrine: “…[T]he owner of a particular copy… lawfully made under this title, or any person authorized by such
owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy….” 17 U.S.C. § 109(a).

“…[U]nless authorized by the owner of copyright in…[a] computer program (including any tape, disk, or other medium embodying such program), or any person in possession of a particular copy of a computer program (including any tape, disk, or other medium embodying such program), may for the purposes of direct or indirect commercial advantage, dispose of, or authorize the disposal of, the possession of computer program (including any tape, disk, or other medium embodying such program) by rental, lease, or lending, or by any other act or practice in the nature of rental, lease, or lending.” 17 U.S.C. § 109(b)(1)(A).

“The transfer of possession of a lawfully made copy of a computer program by a nonprofit educational institution to another nonprofit educational institution or to faculty, staff, and students does not constitute rental, lease, or lending for direct or indirect commercial purposes under this subsection.” 17 U.S.C. § 109(b)(1)(A).

“…[I]t is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:
that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner….” 17 U.S.C. § 117(a)(1).

In plain words, exclusive distribution rights will be exhausted upon “sale” of source code or device embodying the source code if the sale contract is drafted in such a manner. Whether something is a sale or a license is one of the main issue of fight in courts. Careful drafting of contract terms play a major role in dictating the outcome.

                                                                                    Sale v. license in software context:
“…[A] software user is a licensee rather than an owner of a copy where the copyright owner (1) specifies that the user is granted a license; (2) significantly restricts the user’s ability to transfer the software; and (3) imposes notable use restrictions.” Vernor v. Autodesk, Inc., 621 F.3d 1102 (9th Cir., 2010). 


Additional test for infringement & other defenses

1. Abstraction-filtration comparison test– Used for infringement analysis for checking literal & non-literal elements of the       software code.
2. Merger doctrine- exception to idea/expression dichotomy: Only expressions are protected under copyright law, whereas ideas are not. Merger of these two will result in Merger doctrine.
3. Scenes a faire doctrine: Necessarily following from a common theme or setting.