IP Clarity - Poor Man's Copyright
One of the most common discussions we have with creators concerns the concept of poor man’s copyright. Poor man’s copyright involves a creator mailing themselves a copy of their work by registered mail. Many persons erroneously believe that this practice provides protection to their work and moreover, that it is a useful piece of evidence should there be an allegation of infringement.
Today, we are creating IP clarity by providing 3 reasons why poor man’s copyright is of little use.
1. Copyright Subsists
There is no requirement to register a copyright work or conduct any other formalities to receive copyright protection. Once the work has been expressed in a tangible form (fixation requirement), copyright is automatically granted assuming that the work comprises protectable subject matter and is original. Protectable subject matter includes literary works, dramatic works, musical works, artistic works, sound recordings, audio-visual works, typographical arrangements and broadcasts.
In terms of ‘originality’, this does not mean novelty or uniqueness. The work simply must not have been copied from a third-party source and it must involve some element of creativity. The standard for originality is very low, so even your macaroni art on the refrigerator door will qualify for copyright protection.
The one notable exception to the general rule that no registration is required, is in the USA where registration is a procedural requirement for litigation. However, the rule of thumb is that there is no need to register your copyright, which is in line with Article 5(2) of the Berne Convention that expressly forbids the use of formalities in the grant of copyright protection.
Poor man’s copyright is ineffective because it does not prove provenance. That is, mailing yourself a copy of the work does not guarantee that copyright subsists in your work nor that you in fact created it. The act of mailing the copy does nothing to prove that the work involves protectable subject matter or is original. Anyone can mail themselves a copy of a work. There is no way to verify that the alleged owner created the work themselves and did not copy from a third party.
3. Independent Creation
Poor man’s copyright is also counterintuitive because copyright law does not prevent against independent creation. This means that if two persons create the exact same work, they both obtain copyright in those works separately so long as it involves original protectable subject matter and they did not copy from one another or any other third-party.Therefore, mailing yourself a copy of a work does not prevent someone else from creating and protecting something identical or similar. Copyright does not have a first to create system, thus, establishing a priority date of creation is only useful if you can also prove that the third-party copied your work.
For these reasons poor man’s copyright is not worth the money spent on the registered post fee. In the modern context, voluntary registration, minting your copyright works as an NFT or registering it on a blockchain suffer from the same inherent defects concerning provenance and independent creation. Having said, that officially sanctioned voluntary registration systems may be useful for evidentiary purposes in court. However, these would constitute rebuttable presumptions of fact.
It is necessary to educate yourself about the requirements for copyright protection, what your exclusive rights are and put in place active copyright management measures to ensure the effective exploitation of your work. Contracts are a must for any deal involving your work.
Clover® offers intellectual property training to businesses and creators and Clover® also assists with the management of intellectual property portfolios. We have assisted many businesses and creators including Carnival bands, event promoters, performers, songwriters and composers, film makers, athletes, authors and artists, with their IP portfolios.