You could have heard about the “poor man’s copyright” anywhere: from an older relative, from a friend, from a high school English teacher. They find out that you’ve been working on a novel and they want to help, so they tell you to mail it to yourself once it’s done. That way, even if you don’t do anything with the novel for years (or if those snooty literary agents and publishing houses are incapable of recognizing genius when they see it), you still have a copy bearing an official federal date—and no one can steal your spot on the New York Times best-seller list.
It’s a nice idea, but the problem with the poor man’s copyright is that it doesn’t work. The humorless federal copyright office explains on its website, “The practice of sending a copy of your own work to yourself is sometimes called a ‘poor man’s copyright.’ There is no provision in the copyright law regarding any such type of protection, and it is not a substitute for registration.”
But if you’re a starving artist, don’t worry. Copyright legislation that took effect on Jan. 1, 1978, dictates that all works are automatically copyrighted from the time that they are created and “fixed” in some recognizable way. A draft of your novel, for example, is copyrighted without you having to mail anything anywhere. That means that it is legally recognized as yours. But you do need to register your work so you can be eligible to take advantage of the statutory damages rule that allows courts to fine people who violate your copyright. If you aren’t registered, you have to prove your actual damages in court. And if someone, for example, made 10 copies of your heretofore secret novel and distributed them to members of a book club, it would be hard to show that compensation for the damage inflicted should be any significant amount of money.
Before Jan. 1, 1978, there was a distinction between “common law copyright” and “federal copyright” that may hint at the origin of the “poor man’s copyright” myth. Sally Wiant, a professor at Washington and Lee University Law School who focuses on copyright and intellectual property law, explains, “In order to get federal copyright protection, you had to make sure that your creation was released with a formal notice of copyright and you were supposed to register with a copyright office.” On the other hand, “common law copyright didn’t give you as much protection as being federally registered, and there may be those people who thought that by mailing themselves documents they could show that they were in fact the author of whatever the work was that was being protected.”
Both Wiant and Pam Samuelson, a law professor specializing in copyright and intellectual property at University of California–Berkeley, suggest that proof of invention is the more likely time when mailing something to yourself might come into play. Though the United States now grants patents based on a “first to file” model, the system was previously based on “first to invent,” and one way you might prove the date that you had invented something was through mailing. “Dated lab books are the usual method of establishing this in industry. But a sole inventor might resort to a mailing as an alternative,” Samuelson wrote in an email. And Wiant says that though she can see why people might have done it, “There’s nothing in the law that necessarily recognizes that as being a definitive date.”
Yet the myth persists. There are countless Internet forums where commenters spout misinformation about copyright and intellectual property law, and claim that they are protecting their creations through the poor man’s copyright. But somehow they never seem to cite any triumphant stories of successfully defending it in court. Expert Village made a step-by-step video about the poor man’s copyright, and though it mentions at the end that the mail-it-to-yourself trick won’t hold up well in court, the video still presents it as a viable option. It seems that the tactic may be more valuable in the U.K. and France (where it’s known as the “Soleau envelope”).
One of the biggest problems with the poor man’s copyright is that it’s easy to tamper with mail, so it’s not very reliable as evidence. You can mail an envelope with nothing in it so it has a certain date on it, and then put something in the envelope later. You can steam an envelope open and replace what was in it with something else. It’s just difficult to know whether a piece of mail is intact.
But it doesn’t matter because you don’t even need to spend money on stamps or certified mail to get a copyright. “The way the statute reads, pretty much the moment you have it fixed you’ve got copyright,” Wiant says. “It’s not even the poor man’s copyright because even the poorest man, the minute he/she finishes something they’ve got protection.”
So, it’s time to put away the stamps and the envelopes for good. All that fan fiction you wrote in college, incredibly, has had federally recognized copyright all along.
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