The United States Copyright Office defines a “computer program” as a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.
The Copyright Office tells us that “copyright protection extends to all of the copyrightable expression embodied in a computer program,” but no copyright protection is available for “ideas, program logic, algorithms, systems, methods, concepts, or layouts.”
A web developer may create and develop copyrightable code for a website or app commissioned by a client, but he may have no clue as to the process of copyrighting that code or licensing website content.
1. “I’m a web developer — not a copyright expert.”
A web developer may know everything possible that there is to know about computer programming, the development of World Wide Web applications and distributed network applications run from a web server to a web browser but he may be completely in the dark as to the Intellectual Property rights and interests that arise in connection with any program or web application that he develops for a client.
A web developer shouldn’t be expected to provide legal advice as to the rights and responsibilities a client may have in regard to preserving and protecting intellectual property interests in the computer programs and web applications that he creates.
2. “If you don’t know what I’m selling, you probably don’t know what you’re buying.”
Clients of a web developer need to take care to fully examine and understand exactly what services and what product the web developer is planning to provide for them before entering into any agreement to purchase those services. A web developer is experienced at building websites.
He can analyze user needs to meet the goals of the proposed website and find the best web content, graphics, audio and video components to create the website, but he may or may not have any idea as to the procedures for ascertaining copyright ownership or licensing as to separate components used in the web design or even the code he created or used to complete the final website.
If a client envisions owning the program code to his final website or app product or owning all of the copyrights to the written web content, the graphics, the audio features and any other creative content used in the website, then he must be very specific about that requirement in his negotiations with the developer before any contract for services is executed.
Alternatively, a client can also receive copyright ownership of program code, graphics work, and other written content by using an online copyright transfer service like Kunvay.
3. “Not all of the work I produce for you can be copyrighted.”
There are many parts of a website program or related app that can’t be copyrighted at all. All of the typography used can’t be copyrighted because typography can’t be copyrighted. Many of the colors and images a web designer or web developer uses in her work are stock pictures that are not copyrightable.
And again, sometimes the audio or music used in a website program is stock music that is not copyrightable. There are many elements used to design and develop a web page or app that can’t be copyrighted at all.
The final product website may not be considered an original work if large parts of it come from stock that is not copyrightable. In order to make audio or images copyrightable the web developer would need to arrange to have someone create an original picture or an original piece of music or poetry reading.
Typography with a few exceptions is never copyrightable and similarly the words and phrases used in a banner or similar web page function would likely be too common to claim as original for copyright purposes.
4. “The process of copyrighting computer code is different from the process of copyrighting other forms of work.”
The code to a computer program is copyrightable if it meets all other criteria to be eligible for copyright protection.
That means that the code must be an original work of authorship. Most website or app codes probably can’t meet the initial and most important criteria, original authorship, to be granted copyright protection. A website designer or developer can’t sell you a copyrightable product if he basically can’t create a copyrightable product.
But let’s say he could do it and his client was willing to pay him to create a copyrightable code. The process of applying for and being granted a copyright is pretty complicated. The process for copyrighting a computer program is different from that used to copyright novels and photographs.
The “author” website designer or developer would need to describe in detail the copyrightable authorship of the code for which registration is sought. The description may not include references to design, physical form, hardware, algorithm or the code’s features or functions.
An individual may try to copyright a code on a limited basis if the program contains a substantial amount of previously published, registered, or public domain material, underlying the applicant program. And again, the process for making this claim is complicated and includes many phrases that may not be used to describe the applicant code.
If the applicant code is based on original authorship of pictures or graphic images used in the code then the applicant must use the form to register a “visual work of art” and not the regular form.
And then, last but not least, the applicant must send in electronically or in paper form, a copy of the complete code to be copyrights. The process for “depositing the code” is extensive but following the directions should get any applicant to their goal.
5. “Don’t expect me to provide you all the info you may need to copyright the code you receive from me.”
In short, getting copyrightable code for a website or app from a website developer or designer may be challenging, but not impossible, to do.
If you think about the process, which involves copyrighting separately each published version of a computer program when it contains new, copyrightable authorship of some sort, submitting another application and paying yet another filing fee and so forth.
Registration of a first version of a program or code, which is likely a pretty rare situation, can extent to the entire work but only if it includes no previously published code or content that is in the public domain.
It is pretty obvious that filing an application to copyright computer code to a website or app is going to be a process.
Most web developers and designers are not going to be familiar with meeting the criteria to submit a copyright claim for their clients, but honestly, they aren’t lawyers, they are talented designers and developers.
In the end, clients might be better served by letting them focus on doing what they do best; designing and developing web pages.
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About the Author: Christine Varad is the principal writer and editor for Varacolors Media. She earned her JD in law from New England Law and holds a BFA from Massachusetts College of Art and Design. As an artist and a lawyer she has a long standing interest in Intellectual Property law and promoting the rights and interests of writers and visual and performing artists.