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July 28, 2022

U.S. Copyright Deposits Are Important

U.S. copyright applications must be accompanied by a deposit of “complete copies of the best edition.” Two recent cases underscore the importance of deposit copies. In Pyrotechnics Management v. XFX Pyrotechnics, plaintiff claimed defendant infringed by copying computer commands designed to manage firework displays, generated in accordance with a method protocol. The deposit copy, however, included only a description of the protocol (basically a manual), only three of the actual messages generated in accordance with the protocol, and no code. Therefore, the court held that plaintiff’s copyright did not include code. It was limited to the description of the protocol, and not even the protocol itself because the protocol itself was an uncopyrightable method. Because defendant did not copy the description of the protocol, plaintiff lost. Had the plaintiff deposited code perhaps the result might have been different.

In Parker v. Hinton, No. 3:19-CV-00214, 2022 WL 706920 (M.D. Tenn. Mar. 8, 2022), plaintiff was unable to prove that he deposited any material at all. Guess what. He lost too.

Bottom line: the deposit copies matter. They are required, and they stake the outer boundaries of copyright protection. The deposited copies should be a complete and accurate copy of the copyrighted work. The deposit copy should be the first piece of evidence examined by both plaintiff and defense counsel in litigation.