The Poor Man’s Copyright Does and Does Not Exist

Whenever I write one of these blog posts, I struggle with how much information I want to dole out. I want to describe the topic in enough detail that makes it accurate and useful, but I also don't want to provide so much information that the reader feels overloaded and confused. It's a tough balancing act, made even tougher due to the fact that the law is not black or white. It's really quite convoluted at times, with numerous exceptions, escape hatches, and weird little avenues that are applied differently depending on the facts of each particular situation.

Why am I prefacing an article about the Poor Man's Copyright with this? Well, over the past few weeks my social media streams have been crammed with articles proclaiming that the Poor Man's Copyright doesn't actually exist. And while that's technically true, many of these articles have skipped over some necessary details in an effort to boil the thing down to its easiest understood version. As a result, too much important data gets lost, and that can skew understanding of what the Poor Man's Copyright is. As Winston Churchill said, "A lie gets halfway around the world before the truth has a chance to get its pants on.” So here I am to help the truth put its coat on and get out the door.

For those not in the know, the Poor Man's Copyright is the act of mailing a copy of your work to yourself in a sealed envelope. In transit, the envelope will be date stamped and once received by you, it will remain sealed forevermore, or until its opening is required as part of a copyright infringement lawsuit. The combination of being sealed and date stamped helps copyright your work at a cheaper rate than registration. Or at least, that's the old wives tale version of it. 

Unfortunately, this understanding of the Poor Man's Copyright is patently incorrect. So here's what you really need to know.

  1. The Poor Man's Copyright does not provide copyright protection because your work is already protected by U.S. copyright law. There is a fallacy out there that you have to copyright your work and the Poor Man's Copyright is one way to do that. Except that "copyrighting" isn't some affirmative act you need to take. Once you create the work, you're done. The copyright laws of our country are really clear on this: all original works of an artistic nature are AUTOMATICALLY granted copyright protection once they are fixed in a tangible medium of expression. That is, once they're committed to paper, canvas, video, marble, etc. You don’t even have to put a © next to your work to denote that it’s protected (but you should). 
  2. The Poor Man's Copyright does not replace registration of your work with the U.S. Copyright Office.  Most people understand the the Poor Man's Copyright to be a replacement for registering the work with the U.S. Copyright Office, but nothing can replace registration. For one thing, you aren't allowed to sue for copyright infringement until you register your work; if you tried to sue without registration, your case would be dismissed. But registration isn't just a barrier to entry; it actually carries some useful benefits. First, it allows you to sue for statutory damages (anywhere from $750 to $150,000 for each infringed work) instead of actual damages. Proving actual damages, that is, the actual financial harm you've suffered as a result of the infringement, can be really difficult. Statutory damages allows you to cut right through that. More importantly, registration creates a public record of your work, which often acts as a presumption in court that your work came first. In other words, the public record alone can oftentimes be enough to win your case. The Poor Man's Copyright is also designed to be a cheaper alternative than registration. Again while that's technically true, registration with the Copyright Office is only $35 for each work, so it's not like you're saving tons and tons of money by putting your work in the mail.
  3. The Poor Man's Copyright can still be useful as evidence in court. If you elect not to register your work at the time of creation, you can still register it anytime afterwards, including after it's been infringed. In that case, registration will lose some of the aforementioned benefits (like statutory damages and the presumption), which means it won't be as persuasive as a registration that occurred before the infringement. That's where a Poor Man's Copyright can actually be useful. Even though it doesn't replace registration, it still carries evidentiary weight in court. Where the registration fails to show that your work came first, the Poor Man's Copyright can actually do that.

Ultimately, there are a lot of moving parts to this issue. It just goes to show that you have to be careful about what you read and whose advice you take. Don't take anything as gospel and don't do anything that doesn't feel right. The Poor Man's Copyright can still be useful if you elect to use one, but you also won't be losing much if you decide to forgo it.

Greg Kanaan

The [Legal] Artist, Boston, MA, USA