Cover Your App: Protecting Mobile Applications through Intellectual Property Law
In the ever increasing mobile world, the mobile application industry has developed into one of the fastest growing and highest earning industries with the four top app stores worldwide (Apple App Store, Google Play, Windows Phone Store, and BlackBerry App World) collectively accounting for 13.4 billion downloads. These downloads accounted for $2.2 billion in app sales and subscriptions in the first quarter of 2013 alone. Along with this burgeoning industry comes a slew of legal issues ranging from privacy concerns to what parts of an app deserve intellectual property protection.
A mobile application (or mobile app) is a software application designed to run on mobile devices such as smartphones and tablet computers. Mobile applications are sold through application distribution platform stores, as noted above. Mobile apps are either free to download or are downloaded at a charge and the ideas behind them are endless, ranging from word guessing games to apps that allow owners of private jets to use their cell phones in flight.
Due to the widespread popularity and highly competitive nature of the industry, mobile app creators must be able to protect their creations through intellectual property law in order to prevent others from infringing and profiting from their work. Without this protection, creators would not be able to manage quality control over the apps they develop and ensure proper attribution of their apps.
Protection of mobile applications begins with protection of the name, logo, or slogan through trademark law. By protecting the app’s brand, app developers are able to better control consumer perception of the app by distinguishing the developer’s app from other apps available on the market. A protectable trademark gives developers an exclusive right to use the mark on or in connection with the goods or services provided by the app. It is important, however, for the developer to ensure that the name, logo or slogan chosen for the app does not infringe another app owner’s right in a mark, so the developer must follow proper clearance procedures before choosing a brand.
Copyright law also plays a major role in the development and protection of mobile applications. Since mobile apps are software applications running on a mobile device, each is designed with a unique source code that allows it to run on a desired platform. Source code is a set of instructions for computers and mobile devices written in a human-readable computer language that facilitates the actions of the computer or mobile device. Source code meets the standard for copyright protection because it is an original work of authorship designed by the app developer fixed in a tangible medium.
Once original source code is written (e.g., fixed in some tangible form, like on a computer) it is protected by copyright law; however, by registering the source code with the U.S. Copyright office, developers establish public notice that they own the work and have standing to raise an issue of infringement in federal court. In addition to creating the presumption that the developer is the owner and creator of the copyrighted work, developers who register their source code with the Copyright Office may be entitled to collect monetary damages from infringers should the developer prevail in an infringement action.
Apart from seeking protection for the copyright in an app, it is important for developers or business owners who have apps developed by others, to maintain ownership of the copyright in an app. Ownership issues often don’t arise for mobile app creators who are experienced software developers and who write and develop their own code for an app. However, copyright ownership issues do arise when one hires an independent contractor to create and develop code for an app. That is because one must have a written agreement with an independent contractor (e.g., a non-employee independent developer) stating that any code the independent developer creates is a “work-for-hire” under copyright law. As a work-for-hire, any code developed by the independent developer for the hiring business will be owned by that business. By including this specific language in a written agreement, novice and non-tech savvy app creators that hire someone to help them can retain ownership of the copyrighted source code that runs the mobile app.
So, if you are in the business of creating apps, or if you hire creators to develop apps for your business, keep in mind that these apps are valuable intellectual property assets. Like other assets of your business, they should be protected and maintained. With a good business plan and sound advice on how to protect these assets, you can enhance your reputation in the marketplace and potentially monetize your creative ideas.
By Aaron Jagoda, Summer Associate at Dunner Law
© Dunner Law PLLC 2013