Poor Mans Copyright...

[dreamfroggy]

Has anyone ever heard of a poor mans copyright and is it legal?

[Medievalist]

Poor Man's Copyright is a myth; there's nothing illegal about it, it just won't do a thing for you. You might read this thread here (http://www.absolutewrite.com/forums/showthread.php?p=118837#post118837), paying particular attention to what Jaws writes; he's a well-known and respected attorney, with particular expertise and experience in publishing.

Honestly, people worry too much about copyright before they're published. It's not that big a deal. Wait until you get a contract, then look very very carefully at what rights you are selling, where, to whom, for how much and for how long.

[Richard]

Yes, it's when you mail yourself a copy of your work in a sealed envelope and use the postmark to prove its datestamp.

But no, it's completely and utterly worthless, to the point of potentially costing you a ton of money. Hell, a five year old could forge it. Don't waste your time, or the stamp. Nobody is going to steal your book. Relax.

[Jamesaritchie]

Has anyone ever heard of a poor mans copyright and is it legal?

Once upon a time, many, many years ago, under very different copyright laws than those we now live under, "poor man's copyright" was a procedure that was acceptable.
Then two things happened. 1. Copyright law was changed to give a writer much more protection. 2. The courts figured out it was very easy to fake a poor man's copyright.

This was almost 100 years ago, but for some odd reason, poor man's copyright lives on.

As things now stand, your work is already copyrighted the moment you write it, and in order to get money from the courts should your work be stolen, the work must be registered.

But no one is going to steal your work. It's only work that has already been published that people are interested in stealing. Unpublished work simply has no value, and there's no reason for anyone to steal it, and nothing they could do with it, anyway.

[dreamfroggy]

Thanks guys. I am just a little fearful because I sent a short story off to a contest. I worry that I may accidently get involved in a contest that is not as ligit as it appears to be, and someone will help themselves. While I realize that most people are honest, there are always those that are not.

[Jamesaritchie]

T While I realize that most people are honest, there are always those that are not.

True, but even the dishonest are extremely unlikely to want your unpublished story.

[Garpy]

Perhaps a far greater risk than having your manuscript 'stolen' by a publisher, is having your idea copied by another writer ;-)

If you're a high concept or Big Idea type writer, then it's relatively easy for someone else to grab the concept and write their own take on it...which sadly there is no legal protection against. If you write more character-driven stuff....then there's nothing there really that can be 'nicked' so to speak.

At the end of the day though, no publisher/agent will steal a manuscript....there's no need, there are loads of manuscripts full of cool new ideas that they can pick and choose from, and then pay the author a pittance for...why steal?

[loquax]

If that unpublished ms just happened to be Ms Rowling's last book?

[scribbler1382]

If that unpublished ms just happened to be Ms Rowling's last book?

I'm pretty sure she has a lawyer by now. :)

[loquax]

Well, thank goodness for that.

[Jaws]

Just as a historical aside on the poor man's copyright—

The poor man's copyright is actually an artifact of evidence law, not of copyright law. Under the 19th-century rules of evidence that somehow stayed dominant in this country until the 1950s, a document wasn't independently admissible for the truth of what was contained in it without certain other "indicia of authenticity." I won't bore you with the details… but in the late 1890s, a case in New York held that unpublished manuscripts were the lowest of the low, and that decision essentially spread across the country.

In the 1950s, two things happened: Law professors started to question Wigmore on Evidence, and the Patent Act was revised. The revisions to the Patent Act specifically made laboratory notebooks kept in the ordinary course of research admissible in all patent proceedings, including in court. Other reforms to evidence rules had already begun, such as making books of account (the uncertified, day-to-day stuff) admissible in the 1920s. This, in turn, became the "business records rule"—records kept in the ordinary course of business in support of a legal duty, such as documenting deductions from income for tax purposes.

What this longwinded explanation means is this: Your file copy of the manuscript plus your regularly kept submission log are admissible evidence of the provenance of your manuscript now, whereas they weren't a century ago. Given the speed with which things change in the publishing business, it's not entirely surprising that the myth of the "poor man's copyright" persists. The sad thing is that even the poor man's copyright didn't do the job… because the postmark on the envelope couldn't necessarily be accepted as proof of its own validity under the evidence rules of the time, since the item as a whole was not a government document!

[Jamesaritchie]

it's not entirely surprising that the myth of the "poor man's copyright" persists.

Not only persists, but in some odd places. About eight years ago, I gave a talk to a writer's group wherein one woman defended the poor man's copyright. She said an attorney friend, one who handled copyright matters for a very large coorporation, told her that poor man's copyright was still valid, and still a very good way to protect your work.

I was invited back to this group some months later, and the woman brought a letter from the attorney stating that he did recommend poor man's copyright to any and all who wished to protect their work.

Now, my response wa sthe the corporation needed a new attorney, but my word against that of the attorney in question just wasn't going to convince anyone. When things like this happen, it's no wonder the myth persosts.

[icerose]

If that unpublished ms just happened to be Ms Rowling's last book?

For the record it was published it just wasn't released yet. They stole a copy of the printed book from a warehouse where they worked and were trying to sell it to the Tabloids to release all the pre-release secrets of the book.

[Jamesaritchie]

If that unpublished ms just happened to be Ms Rowling's last book?

J. K. Rowling isn't an unpublished writer, but at the very most all anyone could do with a stolen manuscript of hers but be to leak the contents. They chouldn't couldn't sell it, or have it published under their own name.

Unpublished writing is simply worthless. It's after you get published, and your books sell very well, that you have to worry about piracy. This is the big threat.

Stealing unpublished manuscripts from unpublished writers makes less sense than stealing dirt. At least you can use the dirt to grow some flowers. There just isn't anything you can do with a manuscript from an unpublished writer. And nothing you can get away with doing with a manuscript from a known writer.

[Marcus]

There's a page that I normaly reference on the topic of using the poor man's copyright, that everyone else is not referencing that I can see from Google. That's the "Poor Man's Copyright page (http://www.copyrightauthority.com/poor-mans-copyright/)" and goes through all the reasons that you should NOT use the Poor Mans method. Generaly as a rule - it doesnt really stand up and you should know the pitfalls. There are lots of online notary style websites out there - but, there's no safer method than just registering an official copyright.

[veinglory]

Yes, well, some major witing magazines are still perpetuating this one so it will be with us for a while (i.e. the Writers Journal last October)

[Cathy C]

Thanks for providing that link, Marcus. However, a work is protected by U.S. copyright laws (http://www.copyright.gov/help/faq/faq-general.html#mywork) the moment it leaves your head and is "fixed in tangible form." That is to say, put onto paper, into electronic text on a computer, or dictated into an audio recording device. These questions are answered right on the U.S. Copyright Office's home page, in their FAQ section.

Now, it's possible that the linked page was written before the Digital Millennium Copyright Act of 1997, in which case, I'll merely say it's out of date. The "Berne convention" repeatedly referenced was held in 1971. The DMCA made several changes to this.

See, the DMCA changed a lot of the older copyright law, but I won't get into all that here. Suffice it to say that the only purpose registering your work has is if, and that's IF you need to sue someone for plagiarism. You only have standing to file a suit in Federal Court if you've registered the work. But until there's something to protect (i.e., royalties, or published status), it has little value. In addition, only the FINAL work should be submitted to the Library of Congress, and the publisher is likely to make edit changes to the book from the raw manuscript. Copyrighting the raw manuscript won't help the final book, because if someone plagiarizes the final book, the original copyrighted text won't be the same. Hence, there's nothing the court could do.

Go to the source for copyright information. This link (http://www.copyright.gov/help/faq/) will give you everything you need to know. :)

[Peggy]

I am just a little fearful because I sent a short story off to a contest. I worry that I may accidently get involved in a contest that is not as ligit as it appears to be, and someone will help themselves. While I realize that most people are honest, there are always those that are not.Potentially of more concern than stealing your work is whether you signed away your rights to the story in the contest fine print.But anyone who reads it should know that it's complete and utter bullsh*t. Specifically, #3.A., which states "The author, artist, musician creates the work. This is not copyrighted." That's WRONG! A work is protected by U.S. copyright laws (http://www.copyright.gov/help/faq/faq-general.html#mywork) the moment it leaves your head and is "fixed in tangible form." That is to say, put onto paper, into electronic text on a computer, or dictated into an audio recording device.Actually, if you look at the flow chart under 3A, it looks like they are separating the steps of creating a work and fixing the work in a tangible medium. It's true that before it's fixed in a tangible medium (still in your head?), it isn't copyrighted.

(as an aside, I guess that means that if you simply tell a story or sing a song it isn't copyrighted either)

[James Buchanan]

One of the things it does do... if you get into a fight about whether you stole someones work or they stole yours, you have probative evidence (eg: it's not conlusive - but the judge can use it to weigh the credibility of people) as to what you wrote then. BUT you need to have the post office seal every flap and never open it.

It is not, however, a copyright... it's amunition in a legal battle. And we should all be so lucky (or unlucky) as to have such battles come before us.

[KDude]

I've recently moved house. During the move I found a big thick envelope I had clearly mailed to myself at some point in the past. I think this is an example of "poor man's copyright".

I have absolutely no idea what's in the envelope.

[Cathy C]

One of the things it does do... if you get into a fight about whether you stole someones work or they stole yours, you have probative evidence

Actually, no -- it wouldn't even do that. The judge would have to apply copyright law and there is no provision in copyright law for this method of "dating" a work.

Let's look at the probable scenario for a copyright lawsuit. First, at least ONE of the works has to have been PUBLISHED. Otherwise, no laws have been broken. Plagiarism only occurs when harm has been done to the other person. Without some method of attaching financial consequence to the act, there's no case. So, if one of the writings has been published and the other not, then there is a cause of action. But if there's a cause of action, then copyright law applies. Since there's no provision in copyright law for such a method of "registration", it has no value as evidence.

Perhaps Jaws can speak to this issue more. But in general, just forget that the entire concept of a "poor man's copyright" even exists. It's as outdated as a telegram or a Victrola.

[Jamesaritchie]

One of the things it does do... if you get into a fight about whether you stole someones work or they stole yours, you have probative evidence (eg: it's not conlusive - but the judge can use it to weigh the credibility of people) as to what you wrote then. BUT you need to have the post office seal every flap and never open it.

It is not, however, a copyright... it's amunition in a legal battle. And we should all be so lucky (or unlucky) as to have such battles come before us.


Cathy C is right. It won't even do this much. It doesn't matter where you have the seal, what's in the envelope, or when it was put there.

Anyone really worried about their work, and such worry is needless almost 100% of the time, should bite the bullet and actually register it in the proper, and legal, fashion.

[James Buchanan]

Used to litigate copyright law... You're right not conclusive. Doesn't, by itself, prove anything. It is mearly part of the case building issue. Probative means explanitory. It helps fill in the background for the trier of fact. It doesn't establish ownership, but it can help to figure out who had created it first.

And you are right... 99.99999999% of us will never have that problem.

[Medievalist]

Used to litigate copyright law... You're right not conclusive. Doesn't, by itself, prove anything. It is mearly part of the case building issue. Probative means explanitory. It helps fill in the background for the trier of fact. It doesn't establish ownership, but it can help to figure out who had created it first.

Not really, no. I can't find a single case where "poor man's copyright" was successfully used. Every copyright savvy attorney I've ever asked about it -- including David Nimmer -- dismissed it, after they stopped laughing.

Writers really should spend more time writing, and let publishers worry about copyright; it either maketh men mad, or turns them into I.P. attorneys, and some days, I'm not sure there's a difference . . .

[James Buchanan]

Writers really should spend more time writing, and let publishers worry about copyright; it either maketh men mad, or turns them into I.P. attorneys, and some days, I'm not sure there's a difference . . .
That I'll buy. And all attorneys who stay in law more than 5 years are mad. Law drives you insane.

It is always the difference between evidence and proof. And 90% of attorney's miss that distinction as well. It is evidence that you are the writer. It is not PROOF that you are the writer. Honestly if you're really worried about it... go dig yourself a bomb shelter 'cause you ain't living in the 21st century.

[Jamesaritchie]

That I'll buy. And all attorneys who stay in law more than 5 years are mad. Law drives you insane.

It is always the difference between evidence and proof. And 90% of attorney's miss that distinction as well. It is evidence that you are the writer. It is not PROOF that you are the writer. Honestly if you're really worried about it... go dig yourself a bomb shelter 'cause you ain't living in the 21st century.

It is only evidence that you are the writer if the opposing attorney is not very bright. Even with the stamp on the flap, poor man's copyright is the easiest thing in the world to fake, as has been shown many times. So easy, in fact, that any experienced judge automatically looks at it with deep suspicion. Rather than giving evidence thatyou are the writer, it's even more likely to cast doubt in a judge's mind that you are the writer.

[reph]

Even with the stamp on the flap, poor man's copyright is the easiest thing in the world to fake, as has been shown many times.I understand faking it by mailing yourself an empty envelope and filling it later, but how would you fake it if the postmark straddled the flap and the adjoining surface?

[CaoPaux]

I understand faking it by mailing yourself an empty envelope and filling it later, but how would you fake it if the postmark straddled the flap and the adjoining surface?Since such a postmark violates USPS standards and policy, would it be considered a valid postmark?

[roach]

I understand faking it by mailing yourself an empty envelope and filling it later, but how would you fake it if the postmark straddled the flap and the adjoining surface?

By having a friend in the post office stamp it for you.

[blacbird]

Please, Jesus, drive a stake through the heart of this piece of hoary nonsense, and let it never rise again. Amen.

caw.

[Jamesaritchie]

I understand faking it by mailing yourself an empty envelope and filling it later, but how would you fake it if the postmark straddled the flap and the adjoining surface?



Suppose you do open an envelope that has the postmark across the flap (And I've never received an envelope with the postmark there), do you really think anyone can tell the difference if you line it up and seal it? A postmark isn't like a stamped, wax seal, and it doesn't have a tangle of tiny lines designed to prevent fraud. It's no more than fairly thick lines of ink, often smudged, and child's play to line up perfectly when you reseal the envelope.

In fact, the postmark is often out of line when first put on because of the flap, or the angle, or the way the machine was working that day. Hndstamped postmarks are even less reliable, and even more likely to be smudged or out of line. A postmark can be fine as a date, but it is not exactly cutting edge security technology.

Try faking it yourself sometime. I guarantee you can line the postmark up perfectly, seal the envelope, and no one, even with a magnifying glass, can tell you did it.

And, of course, even amateurs have been making their own postmark stamps for centures for all sorts of nefarious purposes. Postmarks are not designed for security, they have no special properties, and a postmark on the flap is something a child could deal with.

But the main thing, of course, is that poor man's copyright has no legal standing, and hasn't for nearly a hundred years. I don't know why it persists.
When the law puts in a system specifically designed to properly date stamp something, they expect this system to be used, and alternative systems are simply not going to be looked at with any favor.

[Jewel101]

Once upon a time, many, many years ago, under very different copyright laws than those we now live under, "poor man's copyright" was a procedure that was acceptable.
Then two things happened. 1. Copyright law was changed to give a writer much more protection. 2. The courts figured out it was very easy to fake a poor man's copyright.

This was almost 100 years ago, but for some odd reason, poor man's copyright lives on.

As things now stand, your work is already copyrighted the moment you write it, and in order to get money from the courts should your work be stolen, the work must be registered.

But no one is going to steal your work. It's only work that has already been published that people are interested in stealing. Unpublished work simply has no value, and there's no reason for anyone to steal it, and nothing they could do with it, anyway.

what if you were a bad gambler/writer and you owe money and your publisher was going to give you a fat advance that would cover your debt when you finish the current novel, but you have the worlds biggest writer's block and your bookie is threatening to kill you and you fall in love with the typist (wait...that was too far) ....

then would it be worthwhile to steal an unpublished work? :D

[James D. Macdonald]

How the heck "poor" do you have to be that you can't afford the thirty clams to get a real-live genuine copyright registration? Not that registering your own copyright is that brilliant an idea in the first place.

(Incidentally, the so-called "poor man's copyright" doesn't come from any iteration of the copyright laws -- it comes from the rules of evidence, from a part of those rules that haven't been valid in a century.)

[Jaws]

One minor correction to Uncle Jim's last post:

Thirty clams until the end of June. The rate will then go up as of the beginning of July, currently expected to be forty-five clams (36.38 oysters for those on the other side of the pond).