Can You Register a Copyright for Software Code?

Software is registered with the Copyright Office as a literary work, the same category as a novel, and the registration protects the code as written: the specific sequence of statements, the structure, and the comments, in both source and object form. What it does not protect is the functionality. A competitor who writes new code that does the same thing has not infringed your copyright, which is why copyright for software is one layer of protection rather than the whole plan. Within that limit, registration is cheap, quick, and the only path to statutory damages and attorney’s fees against someone who copies the code itself. Our copyright registration practice files software registrations for startups and established companies, and the questions below are the ones that come up on every file.

What a software copyright registration covers

Copyright protects expression, not ideas, systems, or methods of operation. For software, courts separate the protectable expression from the unprotectable elements: the algorithm, the functions dictated by efficiency or external constraints, standard programming techniques, and anything taken from the public domain or from open-source libraries. What remains, the programmer’s particular choices in how to write and organize the code, is protected.

A registration of a computer program can also cover the screen displays and user interface the program generates, if the application describes the claim to include them. Audiovisual elements of a game and the underlying code can be registered together or separately depending on how the authorship is described. The point is to describe the authorship in the application in terms the Office recognizes (“computer program” and, where applicable, “text” and “artwork”) rather than in marketing language.

Deposit requirements and the trade secret problem

The deposit is where software differs from other works. The Office’s current circular on computer programs asks for source code rather than object code, and for a program longer than fifty pages, the standard deposit is the first twenty-five and last twenty-five pages, including the page with the copyright notice if there is one. Shorter programs are deposited in full.

Many companies do not want fifty pages of source code sitting in a public record. The Office provides alternatives for programs containing trade secrets. As of this writing, an applicant may deposit the first and last twenty-five pages with the trade secret portions blocked out, so long as the blocked portions are proportionately less than the material left visible and the visible material shows copyrightable expression; or the first and last ten pages of source code with nothing blocked out; or the first and last twenty-five pages of object code together with at least ten consecutive pages of source code with nothing blocked out. The application should state that the deposit contains trade secret material. Choosing among these options is a judgment call about how much of the code is sensitive and how much needs to be visible to show authorship, and we make that choice with the client before uploading.

An applicant who wants to deposit object code alone can do so under the Office’s “rule of doubt,” with a letter confirming the material contains copyrightable authorship. The resulting certificate carries a notation that the Office could not verify the claim, which weakens the presumption of validity in litigation. For code that is a genuine trade secret, the better path is often a redacted source deposit paired with the policies described on our trade secret protection page.

Versions and derivative works

Each released version of a program is a separate work for registration purposes. A registration covers the code as it existed in the deposit, so a registration of version 1.0 does not extend to new material added in version 2.0. If version 1.0 was registered, the application for 2.0 should exclude the earlier version in the limitation of claim and describe the new material. If version 1.0 was released but never registered, it is previously published material that the 2.0 application should also exclude, so the cleaner course is to register 1.0 on its own first.

The practical routine is to register at meaningful release points rather than every commit: a major version, a release that introduces the code most likely to be copied, or a release that will be licensed to customers. Deposit rules for revised programs allow the revised portions to be deposited where the revisions are not in the first and last twenty-five pages. Companies that ship continuously should decide on a cadence (quarterly, or at each major release) and keep to it.

Open source and third-party code

Open-source libraries, frameworks, and any licensed third-party components must be excluded from the claim. The limitation of claim section is where you identify that material, in general terms, as preexisting work not owned by the claimant. Overclaiming by including a library in a registration does not give you rights in it and does give a defendant a reason to attack the certificate. A current bill of materials for the codebase, which investors will ask for anyway, makes this section straightforward.

Ownership before filing

The application names the author and the claimant. Code written by employees within the scope of their jobs is a work made for hire and the company is the author. Code written by a contractor is owned by the contractor unless a signed assignment transfers it; a work-for-hire clause alone usually does not work for software, because software is not one of the statutory categories eligible for contractor work-for-hire treatment. The difference is explained in our post on work made for hire versus copyright assignment. Gather the assignments before filing so the certificate states ownership correctly.

Copyright, patent, or secret for the same code

Copyright is the default and should almost always be obtained. Whether to add a patent for a novel technical method, or to keep an algorithm as a trade secret instead, is a separate decision with different tradeoffs. Our post on trade secret versus patent protection lays out the factors. The three can coexist: copyright for the code as written, a trade secret for the redacted portions and the unpublished internals, and a patent, where available, for the method.

If you are preparing to register a codebase, especially one with trade secret portions or mixed ownership, a consultation with Capitol Law Partners can set the deposit strategy and the claim language before you file. Schedule a consultation.

This article is for informational purposes only and does not constitute legal advice. No attorney-client relationship is formed by this communication.

Attorney Cagatay Ersoy. Practical strategy for founders, investors, and growing companies.

Need help with this topic? See our copyright registration for software and content page or schedule a consultation.