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721.8 Copyrightable Authorship in a Derivative Computer Program

 

721.8 Copyrightable Authorship in a Derivative Computer Program

 

A derivative computer program may be registered if it contains new material that is sufficiently different from the preexisting work such that the program qualifies as an original work of authorship. See 17 U.S.C. § 101 (definition of “derivative work”). The new material must be original and it must contain a sufficient amount of copyrightable authorship. Making only a few minor changes or revisions to a preexisting work, or making changes or revisions of a rote nature that are predetermined by the functional considerations of the hardware does not satisfy this requirement. In no case does the copyright for a derivative computer program extend to 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 the program. 17 U.S.C. § 102 (B).

 

Examples:

 

• Decrypt Corp. created a computer program titled Skeleton Key version 5.0. The program contains a substantial amount of new code that did not appear in prior versions of the same program. The additions and revisions that appear in the source code for version 5.0 may be registered as a derivative work.

 

• Pentathlon Games released a videogame titled World of Watercraft, which is designed to run on the Sony PlayStation. A month later, the company released another version of the game that is designed to run on the Microsoft Xbox. The source code for each version is substantially different, and not simply the result of interoperability or hardware compatibility, although the sounds and images that appear in the videogame are exactly the same. The source code for the Xbox version may be registered as a derivative work.

 

• Derrick Maxwell created a word processing program titled Linux Write, which is designed to run on the Linux operating system. He subsequently created another program titled Android Write, which is designed to run on the Android operating system. Derrick submits an application to register Android Write and in the Author Created/Other field he states that he “adapted this program to run on a different operating system.” The registration specialist will communicate with the applicant, because it is unclear whether the author contributed a sufficient amount of copyrightable authorship to this work.

 

• Shell Games LLC submits two applications for the same computer program, one specifically for the source code and the other for the object code. Because there are no copyrightable differences between the source code and the object code, there is no basis for issuing a separate registration for each representation of the program. Moreover, if the object code was created by a computer program, there would be no human authorship in the object code, and no authorship that is distinct from the source code. The registration specialist will register the claim in the source code, and reject the claim in the object code.

 

Each version of a computer program that contains new, copyrightable authorship is considered a separate work. See 17 U.S.C. § 101 (definition of “created;” stating that “where the work has been prepared in different versions, each version constitutes a separate work”). A registration for a specific version of a computer program covers the new material that the author contributed to that version, including any changes, revisions, additions, or other modifications that the author made to that version. See H.R. REP. NO. 94-1476, at 57 (1976), reprinted in 1976 U.S.C.C.A.N. at 5670; S. REP. NO. 94-473, at 55 (1975) (explaining that “copyright in a ‘new version’ covers only the material added by the later author, and has no effect one way or the other on the copyright or public domain status of the preexisting material.”). However, a registration for a specific version of a computer program does not cover any unclaimable material that may appear in that version. For purposes of registration, unclaimable material includes:

 

• Previously published material.

 

• Material that has been previously registered with the U.S. Copyright Office.

 

• Material that is in the public domain.

 

• Copyrightable material that is owned by a third party (i.e., an individual or legal entity other than the claimant who is named in the application).

 

If the program contains an appreciable amount of unclaimable material, the applicant should identify that material in the application and should exclude it from the claim using the procedure described in Section 721.9 (G) below. See 17 U.S.C. § 409 (9) (stating that “[t]he application for copyright registration … shall include… in the case of a compilation or derivative work, an identification of any preexisting work or works that it is based upon or incorporates, and a brief, general statement of the additional material covered by the copyright claim being registered…”).

 

Examples:

 

• Excluding previously published material. Softwear, Inc. submits an application to register a program titled Clothing Maker version 3.0. Version 3.0 contains an appreciable amount of code that appeared in versions 1.0 and 2.0 of the same program. Softwear distributed copies of versions 1.0 and 2.0 to the public before it filed its application for registration of version 3.0. Versions 1.0 and 2.0 would be considered previously published works, even if the copies only contained the object code for those versions and even if the source code for those versions was never disclosed. Therefore, the application should be limited to the new material that appears in version 3.0, and any source code that appeared in versions 1.0 or 2.0 should be excluded from the claim using the procedure described in Section 721.9 (G).

 

• Excluding previously registered material. Jesper Nielsen submits an application to register a program titled Ink Blot version 5.0. This version contains an appreciable amount of source code that appeared in versions 1.0 through 4.0 of the same program. The prior versions have not been distributed to the public, but version 2.2.1 was previously registered with the Office as an unpublished work. The registration for version 5.0 will cover the new material that appears in that version, as well as any unpublished or unregistered source code from versions 1.0 through 4.0 that appear in version 5.0. However, the source code that appeared in version 2.2.1 should be excluded from the claim using the procedure described in Section 721.9 (G).

 

• Excluding third party material. Vivek & Associates created an operating system titled Architexture v. 9.0 using a software development tool titled Picture This v. 2.50. The source code for Architexture v. 9.0 contains an appreciable number of modules, subroutines, and macros that were used with permission from the company that produced Picture This. Vivek & Associates should exclude those modules, subroutines, and macros from its application to register Architexture v. 9.0 using the procedure described in Section 721.9 (G), because the copyright in that material is owned by a third party.

 

• No disclaimer required. CodeBuster LLC submits an application to register a program titled Hackleberry Finn version 3.0. Version 3.0 contains an appreciable amount of code that appeared in versions 1.1.1 and 2.2.2 of the same program. CodeBuster never registered versions 1.1.1 and 2.2.2 and never distributed those versions to the public. Therefore, the prior versions of the program need not be disclaimed in the application to register version 3.0. The registration for version 3.0 will cover all of the copyrightable content that appears in that version, including any unpublished or unregistered source code from versions 1.1.1 or 2.2.2 that have been incorporated into version 3.0.

 

The registration specialist may communicate with the applicant if the program appears to contain an appreciable amount of unclaimable material and if the applicant does not exclude that material from the claim. Examples of factors that may prompt a specialist to inquire whether a computer program contains unclaimable material include the following:

 

• Multiple copyright notices.

 

• A copyright notice containing an earlier date than either the completion year or the publication date specified in the application.

 

• A copyright notice containing multiple dates.

 

• A copyright notice containing a different name than the author or copyright claimant named in the application.

 

• Multiple version numbers or multiple release numbers (if it appears that the previous versions may have been published or registered or if they may be owned by a party other than the copyright claimant).

 

• A revision history in the deposit indicating that changes were made to the program after the year of completion or date of publication specified in the application.

 

• An indication that the author created the work using another computer program as an authoring tool.

 

If the deposit contains multiple dates or multiple version/release numbers, the applicant should notify the registration specialist if those dates or numbers refer to the development history of the program or if they refer to previous versions of the program that have not been published or registered before. When submitting an online application, this information may be provided in the Note to Copyright Office field; when completing a paper application this information may be provided in a cover letter.

 

If the program contains only a minimal amount of unclaimable material or if the program contains material that is uncopyrightable, there is no need to exclude that material from the application. Unclaimable material should be excluded only if that material is copyrightable and represents an appreciable portion of the work.

 

Example:

 

• Professor Barrakat submits an application for a computer program titled BearCat 5.0. The program contains 5,000 lines of entirely new source code and 50 lines that appeared in a previously published version of the same program. There is no need to exclude these 50 lines of code from the application, because they do not represent an appreciable portion of the program code for BearCat 5.0.