Why the Poor Man’s Copyright Will Keep You Poor
September 24, 2014 by Katherine Imp
So true, so false: the poor man’s copyright protects your creative work.
False. Don’t believe this old wives’ tale for a second. Long, long ago, some guy did not want to pay $35 to register his copyright, so he came up with the brilliant plan to seal his script in an envelope and mail it to himself. That way he’d have an official, dated record of the material’s existence. Hence the phrase “poor man’s copyright” came to be.
Dumb. Don’t do it. Save the postage. The only way you can properly protect your work is through the United States Copyright Office.
“But I thought my work was automatically copyrighted from the time of creation regardless of registration?”
True, kind of. Thanks to Congress amending the Copyright Act in 1976, copyright attaches “upon fixation in a tangible medium of expression.” So, for example, if you sing “Wrecking Ball” to yourself in the shower, your rendition will not be copyrighted; however, if you instead sang that song on your boyfriend’s voicemail, the sound recording is copyrighted immediately. As you can see, this change in the Copyright Act makes the “dated record” element (and thus the poor man’s copyright) irrelevant.
“Then why should I register my work if it’s already copyrighted from the minute it becomes fixed in a tangible medium?”
Two words: copyright infringement. If you want to obtain statutory damages (and reimbursement of legal fees) for copyright infringement, you MUST register your work with the US Copyright Office. Period. End of story.
Now let me debunk everything else you’ve heard:
• Independent Script Registries are a substitute for registering material with the United States Copyright Office.
False. Since 1927, the Writers Guild of America West (WGAW) has provided writers with a screenplay registration service. For $20 you can register your script prior to submitting it to agents, managers, producers, and/or collaborators to document your authorship. You can also register treatments, pilots, proposals, synopses, and event simple notes and concepts. However, this registration is NOT a replacement for registration with the United States Copyright Office. Its only real value is as an external depository for duplicate copies of your material to be held on file (well, for 5-10 years).
• Ideas can be protected.
False. As discussed above, copyright is a form of intellectual property that protects “original works of authorship” when “fixed in a tangible medium of expression.” Thus, if you have an idea for a television series, and you discuss it with the guy sitting across from you at Starbucks, he has every right to take that idea from you and call it his own. Now, you may have an argument under common law, such as unfair competition or misappropriation, but these cases are extremely hard to win.
• Once your work is registered with the United States Copyright Office, you can sue anyone that tries to steal your work.
False. And here’s the catch: a work can be original if it has a slight degree of creativity AND is independently created. In other words, if two people write the exact same song, but don’t have access to the other person’s song prior to writing his/her own version, both songs can be copyrighted.
Another issue that makes infringement cases hard to win is the degree of similarity between the two works. For example, if you write a screenplay about a camera that, when used, foreshadows a bad event happening to the people depicted in the photograph, should R. L. Stine have the right to sue you for copyright infringement? Or is your telling of the story “substantially” different from his book, “Say Cheese and Die?”
To summarize: register your work with the United States Copyright Office. Pick your friends, business partners, and confidants wisely. And don’t just tell any Joe Schmoe on the street your Oscar-winning ideas.
Katherine (Kate) Imp is an entertainment attorney at Ramo Law PC and Chicago native. She specializes in film finance, production and distribution for clients in Illinois and across the country. Contact Kate at @KatherineImp or firstname.lastname@example.org.
Disclaimer: The information in this column is intended for general information purposes only and should not be construed as legal advice.