Ask a Music Lawyer: Is the Poor Man’s Copyright Enough to Protect Your Songs?

IAR - poor mans copyrightIs the “Poor Man’s Copyright” enough to protect your songs? The short answer is no.

A work that meets the standards of originality is considered to be copyrighted under United States law when that work is “fixed in any tangible medium of expression,” (17 U.S. Code §102) which means that the work is put into a physical medium that can be reproduced, like writing it down, recording it on an audio or video recorder, etc.

What is the “Poor Man’s Copyright?”

The Poor’s Man’s Copyright is a practice where someone would take a work they had created, put it in an envelope, and mail it to himself via the United States Postal Service. Because the Postal Service would stamp the envelope with a postmark that had the date of mailing, it is argued that the date on the envelope proves that the work was created on or before that date. Otherwise, if the person hadn’t created it yet, how would he have mailed it to himself?

Poor Man’s Copyright 2.0*

Now with the Internet, the argument people try to present to me is that once a person posts something on the Internet, the timestamp of the posting is enough to show that the work was created on or before the date that it was posted online.

Why the Poor Man’s Copyright Isn’t Enough

There are a few reasons why the date or time stamp is not enough to protect a work. Firstly, while as a matter of logic the work had to have been created on or before it was mailed or posted, it doesn’t dictate when the work was actually created. For example, if Person A creates a work in January of a certain year, but does not mail or post it until September of that year, the date/time stamp Person A seeks to use as evidence will be in September. If Person B someone how access to Person A’s work, copies a portion of that work, and releases and/or registers his new work for copyright in July, then Person B’s work will have a date of July and Person A’s work will have a date of September without concrete proof that his work was actually written in January and before Person B’s work.

While it is true that Person A could show that Person B had access to their work, a date on a federal copyright registration certificate will almost always trump the date/time stamp and other date evidence. In addition, if Person A had registered for federal copyright protection, he could have indicated that the work was created in January even if he filed later. Furthermore, Person A could not even sue for infringement in federal court without having a federal copyright registration, leaving him without strong options to defend his work if it was infringed.

Why Register Your Work?

Federal copyright registration with the United States Copyright Office is always advisable because

  • A person cannot sue in federal court for copyright infringement without a federal registration.
  • The date of creation listed on a federal registration certificate is the strongest evidence a court will consider.
  • And federal registration provides additional benefits including but not limited to:
    1. Public notice of who owns the work;
    2. Listing in the United States Copyright Office’s online databases
    3. A legal presumption of ownership of the work in court (if certain conditions are met);
    4. Statutory damages and attorney’s fees (i.e. more money!) can be awarded to the winner of an infringement suit (if certain conditions are met).

A person can register his own works for copyright protection, and the online registration fee ranges from about $35-55. However, the terms and application can get complicated, especially for someone who has never filed a registration application before. You don’t want to later find out that your copyright is invalid, like Rick Ross just did.

Let Indie Artist Resource to file the registration so it is done correctly the first time.

Registering works for federal copyright protection won’t prevent someone from infringing, but it does provide the strongest ammunition to protect creative works.

Disclaimer: This article is for educational and informational purposes only and not for the purpose of providing legal advice. The content contained in this article is not legal advice or a legal opinion on any specific matter or matters. This article does not constitute or create an attorney-client relationship between Erin M. Jacobson, Esq. and you or any other user. The law may vary based on the facts or particular circumstances or the law in your state. You should not rely on, act, or fail to act, upon this information without seeking the professional counsel of an attorney licensed in your state.

If this article is considered an advertisement, it is general in nature and not directed towards any particular person or entity.

This article was originally published on Sonicbids.com.

*Term coined by Erin M. Jacobson, Esq.

Jacobson, Esq. Erin M.

Erin M. Jacobson is a practicing attorney that represents musicians, songwriters, producers, and other entertainment professionals. She is known throughout the music business as "The Music Industry Lawyer" and her clients range from Grammy and Emmy Award winners to independent artists and companies. She works directly with her clients at every career stage and strives to protect her clients and their creative endeavors through deal negotiations and proper intellectual property management. Erin founded Indie Artist Resource to provide protection to independent musicians with barriers to obtaining basic legal and business documents.

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