XR, Copyrights for Software and the Importance of Works Made for Hire: Part I of III
Wednesday, November 11th, 2020
If you’re an independent XR software developer, do not overlook copyright and its application to the software you are developing.
By Mark Sternberg
Part I: Introduction to Copyright and the Federal Registration of XR Software in the US
Understanding Copyrights in XR Software
Understanding Copyrights in XR Software
Copyrights relate to the “expression” contained in an artistic work and a copyright vests in its author as soon as the creation is “fixed in a tangible medium.” XR Software, like most computer programs generally, is typically built upon source code, which is any collection of computer code written using a human-readable programming language (like C++), usually in plain text (like you see in any text editor like Microsoft Word).
The copyright in XR software’s source code is created as soon as the code is typed. For other assets that may be involved in the XR software, such as 3D models, 2D particle effects or digital soundtrack files, generally it would be as soon as they are created in their respective program or tool and they can be “perceived” (i.e. can be seen, heard, etc.). Addressing a common misconception, a creator has a copyright in their work regardless of whether they have a federal registration with the US Copyright Office (though it has numerous benefits, which are discussed later).
Copyrights do not just protect complete applications but other software code as well, such as scripts. A script is a set of code written in a programming language made to operate within a specific run-time environment. For example, applications built with the game engine Unity have a runtime environment that understands code written in the programming language C# and will operate that code while the program is running, when necessary.
Unity is popular among independent XR developers (as is its competitor Unreal), and it is common for developers to create scripts and other digital assets, such as 3D models. In fact, some developers and artists, such as Synty Studios, do not design completed applications but focus only on creating these pre-made assets for sale to other developers who are making complete applications. These pre-made assets in particular are often targets of illegal sharing among certain unscrupulous developers, and thus copyright infringement, so a federal copyright registration should be strongly considered for them as well.
It is also important to note that for copyright purposes, there are two parts of typical XR software — the source code, which in isolation is generally considered a literary work, and the audio and visual elements of an XR experience which appear in a headset or on a screen. The Copyright Office leaves it up to the creator to make the choice over whether to file their XR software as a literary work or audiovisual work, depending on which of the two areas the creator feels the software focuses on.¹
There are also other intellectual property protections for XR software which a copyright does not cover. A copyright, with some exceptions that will be discussed later in this series, generally does not protect the function or design of the computer program, which would be more in the domain of utility and design patents, respectively. Copyrights also do not protect your application or your company’s name, logo or other such forms of identifying information, which fall under the domain of trademarks (or perhaps service marks if your company functions in more of a “SAAS,” or software-as-a-service, type business). Both patents and trademarks for XR software will be discussed in future posts.
Benefits of Federal Registration
A creator does not immediately need to register their XR software to obtain a copyright, but this federal filing does come with significant benefits and protections. When creators register their copyrights before an infringement, or within three months of “publication,” they are entitled to statutory damages and reasonable attorneys fees if they prove infringement. To clarify, publication occurs when XR software is distributed to the public, not private or select groups, such as beta testers in a “closed-beta” or Oculus or Steam personnel for review for a potential future release on their respective platforms. When distributing through a platform like Oculus or Steam, publication will occur when — generally after the platform’s own review and approval — the creator gives the platform the green light to distribute the XR software to the public.²
Statutory damages and reasonable attorneys fees can be quite important. Specific monetary damages can be very difficult to prove in court while statutory damages provide a minimum of $200 per work, but can increase damages up to $150,000 per work if the infringement of the work was intentional.³ As for attorneys fees, the fees for litigation attorneys are quite expensive and, unless those fees can be recovered from the defendant, those fees can cost as much or more than the damages the creator is awarded in court. As a creator is unlikely to know that the work is infringed until after it happens, it is safer for them to register within three months of publication to get the full benefits of a federal registration.
One problematic aspect of the federal protection is that it only covers the code that is included with the filing.¹ As developers know — software is usually updated routinely. That said, filing around when you’re ready to ship a major release will likely protect a great deal of your code since, other than major feature updates to the original software, most of the code will stay the same except minor changes related to routine bug fixes and such. What also could be useful to note is that the Copyright Office allows a creator to register several versions of the software at the same time, as long as none of the versions have been published.
Probably one of the greatest selling points of filing for federal registration of a copyright is the price. It is 35 or 55 dollars (depending on the type of filing) and can be done online using the Copyright Office’s online system.⁴
As part of the copyright registration process, in addition to the application form, the Copyright Office will also require a copy of a portion of the source code that drives the XR software. In some cases, such as if a creator was using a game engine like Unity, a decompiler can be used to extract the source code from the finished application. However, a creator will need to be clear during the registration process that they are not making a copyright claim in source code that derives from the game engine itself (or any other code that they did not create themselves).
Also worth noting that the Copyright Office greatly prefers source code (human created and readable code, i.e. C#) versus object code (machine readable code, i.e. 0’s and 1’s). There are limitations placed on the registration if it is submitted with only object code.
Having examined how the fundamental elements of copyright law and federal registration apply to XR software, Part II of this series will turn the focus to how the “Work-Made-For-Hire” doctrine of copyright law applies to the XR software industry.
Mark Sternberg is an Entertainment Attorney and award-winning XR Technical Producer in New York.
This post is not legal advice. You should consult an attorney if you have specific legal questions.
-  See United States Copyright Office, Circular 61: Copyright Registration of Computer Programs, https://www.copyright.gov/circs/circ61.pdf (last visited Nov. 10, 2020).
-  See United States Copyright Office, The Compendium of U.S. Copyright Office Practices: Chapter 1900, https://www.copyright.gov/comp3/chap1900/ch1900-publication.pdf (last visited Nov. 10, 2020).
-  17 U.S.C. § 504(c). (Remedies for infringement: Damages and profits) https://www.law.cornell.edu/uscode/text/17/504 (last visited Nov. 10, 2020).
- See United States Copyright Office, Fees, https://www.copyright.gov/about/fees.html (last visited Nov. 10, 2020).