by Ashley Nance
December 19, 2015
Copyright protection covers “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”
Within the listed types of “original works of authorship,” mobile apps, like video games, likely fit into the “motion pictures and other audiovisual works” category.
Copyrights allow owners, or authors, to enjoy the exclusive right to: reproduce the work, prepare derivative works, distribute the work, perform the work publicly, display the work publicly, and to perform the work by digital transmission.
I Understand the Basic Goals of Copyright – but Does My Mobile App Really Need that Protection?
Yes. Absolutely. Anything you’ve devoted time and resources to creating is a good candidate for copyright; however, those works you plan to profit off of most certainly need this protection. You probably want to reap the benefits from all the hard work you’ve put into your mobile app, so preventing others from doing so is pivotal to your app’s success.
There are three main reasons you need to copyright your mobile app: (1) Access to statutory damages and possibly attorney fees from infringer: (2) Content “borrowers” could engulf the success that should have been yours; (3) Piracy laws only apply to those apps that have registered copyrights
Damage Awards are Available for Registered Copyrights that are Infringed
Under the United States Code, someone who infringes a registered copyright is liable for either: (1) the actual damages to the copyright holder and profits made by the infringer off of the copyrighted work OR (2) statutory damages. Statutory damages are damages stipulated in the statute itself, rather than based off degree of injury to the plaintiff. The copyright statute calls for damages anywhere between $750 and $30,000.
In infringement cases, damages are awarded only to those holding registered copyrights. Without registered copyrights, it is much more difficult to prove infringement.
For mobile app owners who would lose out on a substantial amount of money, actual damages may be the better route; however, for those who don’t stand to lose as much monetarily but still value their app, statutory damages would provide more value. It is up to the holder of the registered copyright to elect statutory damages before a jury begins deliberation.
A court may also award attorney fees to the prevailing party. Although attorney fees should not be assumed to be covered by the losing side, the possibility should make a mobile app holder more comfortable with bringing a lawsuit to defend an app.
Content “Borrowers” Might Redirect Your Profits
Without the protection of registered copyrights, content on a mobile app could be freely copied without repercussions. Selling apps that are not copyright protected runs the risk of other mobile app producers using similar, if not virtually identical, portions of the apps to construct their own versions.
Think of the profits that could be diverted from the original app creator to the copycat – if people have a hard time differentiating between the two, some customers will almost certainly go with the copycat. Without the burdensome costs of app development, copycat creators, or content “borrowers,” are able to sell the same product for a lower cost.
There are plenty of horror stories where one company creates a successful mobile app, and then another company comes in and “creates” another app that is nearly identical, with only small changes, and makes a profit. That profit should rightfully have belonged to the company that actually came up with the idea.
This exact scenario recently happened with Machine Zone, Inc.’s Game of War mobile app. In a $100 million lawsuit, Machine Zone alleges that Ember Entertainment’s Empire Z game is practically the same as Game of War, they just “swapped out knights and catapults for zombies and machine guns.” The parallels include gameplay features, style, and visual graphic items.
The similarities between the two games created confusion among customers. People thought they were purchasing a game made by the company who created Game of War, thus diverting even more revenue from Machine Zone to Ember Entertainment.
Piracy Laws Protect Works with Registered Copyrights
Mobile app piracy is an ever-present issue in today’s day and age. Companies are popping up whose sole purpose is to reproduce and distribute mobile apps from legitimate retailers who hold valid copyrights.
Last year, the U.S. Department of Justice began a wide-scale effort to crack down on intellectual property rights violations. In one operation, three mobile app piracy groups reproduced and distributed over a million copies per copy of legitimate, registered Android apps. According to the acting Assistant Attorney General, the organizations represented “large-scale violation of intellectual property rights in a relatively new and rapidly growing market.”
SnappzMarket, Appbucket, and Applanet are three such companies. Between the three, approximately $19.4 million worth of revenue was redirected from the mobile app owners to the piracy groups. This is a hefty sum of money that the original creators of the apps would, without a doubt, have preferred to be in their pockets rather than those of the piracy companies.
Whether protection under piracy laws, holding onto success that is rightfully yours, or access to damage awards within lawsuits stands out as important to you, all three are significant considerations in making the decision to copyright your mobile app.