Poor man's copyright

ResearchGuy · Mar 28, 2011

whimsical rabbit said:
...That said, I'm all pro an a priori registration with a guild like WAG (which is not the same as copyright).

More to the point, is not copyright registration, and does not enable lawsuit for infringement.

--Ken

whimsical rabbit · Mar 28, 2011

ResearchGuy said:
More to the point, is not copyright registration...

Yep. That's why I talked about them as two different things. Registering your manuscript in a guild like WAG is not like registering for copyright, in case I confused anyone (which I don't think I did, but let me save my arse anyway

).

absitinvidia · Mar 28, 2011

Greece is a signatory to the Berne Convention and a member of the EU, so I would expect the same law applies as in the US, which is that you hold the copyright by completing the manuscript. It's the registration of the copyright that appears to be problematic.

whimsical rabbit · Mar 28, 2011

absitinvidia said:
Greece is a signatory to the Berne Convention and a member of the EU, so I would expect the same law applies as in the US, which is that you hold the copyright by completing the manuscript. It's the registration of the copyright that appears to be problematic.

Yeah, that sounds about right.

Susan Coffin · Mar 28, 2011

Medievalist said:
There's a stunningly attractive Copyright FAQ in AW's FAQs.

Did I mention that it was stunningly attractive?

And, who is athe author of that stunningly attractive thread?

Alessandra Kelley · Mar 28, 2011

I thought the "poor man's copyright" was an urban myth, sort of thing.

It seems cruel to try to make a profit over people's confusion.

ResearchGuy · Mar 28, 2011

Alessandra Kelley said:
I thought the "poor man's copyright" was an urban myth, sort of thing.. . ..

Precisely. Does not mean people do not believe and act on it.

--Ken

shelley · Mar 29, 2011

You wouldn't believe how many people do it here. That's the reason I asked for the advice.

Pete Morin · Mar 29, 2011

Common law vs statutory

Gee, I didn't think there'd be such misconception here. (This is part of my legal practice.)

There are two distinct types of copyright - one is common law, the other is statutory.

Common law - as has been mentioned, you write it, you own it. If someone steals it (e.g., off of your blog, if you're STOOPID enough to post more than a mere snippet), you do indeed have a cause of action for copyright infringement. It's essentially a tort, like trespass or conversion. You can recover the value of the thing taken, which in most cases here would be practically nil.

Statutory - if you have taken the added step of copyrighting the work (i.e., registering it), you can sue for infringement under the statute.

The statute is, in essence, a codification of the common law rights with a few bells and whistles added by generous Congressmen of yore. The Big Difference? UNDER THE FEDERAL COPYRIGHT LAW (and many state copyright statutes), YOU ARE AUTOMATICALLY ENTITLED TO YOUR ATTORNEY'S FEES :tongue

when you win.

Bufty · Mar 30, 2011

The copyright is yours automatically, and registering of the copyright is best left to the publisher if and when one is found, which means in essence -as folk have said before - one doesn't have to do a darned thing to obtain copyright to the manuscript of your novel.

Pete Morin · Mar 30, 2011

The copyright might best be left to the publisher if you've sold it to the publisher.

If you're putting it up on Kindle or Smashwords, then you better do it yourself!

It's a simple process and only costs $35. Just make certain you register exactly the same copy as you upload.

Bufty · Mar 30, 2011

You keep referring to 'copyright' when I suspect you mean 'registration of copyright'.

ResearchGuy · Mar 30, 2011

FWIW:

"Before an infringement suit may be filed in court, registration

is necessary for works of U. S. origin."

http://www.copyright.gov/circs/circ1.pdf

--Ken

maestrowork · Mar 30, 2011

You do have to register the copyright to protect yourself legally. The matter is when. Usually it's before publication, so the copyright date matches the publication date. Like I said before, you don't want to have something published in 2011 that has © 2007 on it.

If you're not ready for publication yet, I don't think copyright registration is necessary. You already have copyright. You can, to some extent, protect yourself from theft by registering it with WGA. That way, you're not stuck with a copyright date that is way prior to your pub date, or risk pissing off your potential publisher.

blacbird · Mar 30, 2011

I've never heard of a single instance in which a "poor man's copyright" procedure has been used for successful legal action.

Pete Morin · Mar 30, 2011

ResearchGuy said:
FWIW:

"Before an infringement suit may be filed in court, registration
is necessary for works of U. S. origin."

http://www.copyright.gov/circs/circ1.pdf

--Ken

Yes, that's what the statute says. But this was "Congress," after all.

Observe:

Permitting district courts to enjoin the infringement of unregistered copyrights is not only consistent with § 502(a), but also gives meaning to § 408(a)'s provision that "registration is not a condition of copyright protection," and to the congressional [**49] policy of making available the additional remedies of statutory damages and attorney's fees to those [*133] who register. Cf. Walker Mfg. v. Hoffmann, Inc., 220 F. Supp. 2d 1024, 1039 (N.D. Iowa 2002) ("Where the owner of an unregistered copyright seeks injunctive relief, as opposed to statutory damages, the Eighth Circuit Court of Appeals has held such an action is viable even in the absence of copyright registration.").
Muchnick v. Thompson Corp., 509 F. 3d 116 (2007)

ResearchGuy · Mar 30, 2011

Pete Morin said:
Yes, that's what the statute says. But this was "Congress," after all.

Observe:
. . .

Interesting. That seems to have escaped the attention of the intellectual property attorney who recently spoke to the publishers/authors organization I am in.

He was pretty clear: no registration, no lawsuit for infringement.

By name, Mark Leonard, representing California Lawyers for the Arts.

--Ken

Mac H. · Mar 30, 2011

Pete Morin said:
("Where the owner of an unregistered copyright seeks injunctive relief, as opposed to statutory damages, the Eighth Circuit Court of Appeals has held such an action is viable even in the absence of copyright registration.").
Muchnick v. Thompson Corp., 509 F. 3d 116 (2007)

Huh? Even for work originating in the USA?

Even in the past few months we've seen cases thrown out because the person filing the action hadn't registered the copyright as part of the formality of starting the lawsuit.

If the above is true then surely why are judges throwing out cases on the grounds that the copyright wasn't registered?

The law is simple:

Section 411(a) of the Copyright Act, which regulates a district court’s authority to adjudicate a copyright claim, is one such additional provision. It provides that "no action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title"

So how can a person take an action for infringement without registration of the copyright claim? Is there a technicality for doing it in a non-district court?

To quote an appeals court decision:

The precise issue on appeal is whether the District Court had jurisdiction to certify a class consisting of claims arising from the infringement of unregistered copyrights and to approve a settlement with respect to those claims. We hold that it did not. We therefore vacate its order and judgment and remand the case for proceedings consistent with this opinion

In a discussion of that case, they argue that the law is still in compliance with the Berne convention because:

[The] language, legislative history, jurisdictional exceptions, and exception for foreign works strongly indicate that the registration requirement is more akin to a claim-processing rule than a jurisdictional prerequisite

Can you provide an example where a US court permitted a case without the 'claim-processing rule' of registering copyright first?
(Obviously examples like foreign works don't count!)

I'm not doubting that they exist - I'm just trying to understand the exceptions.

Mac

Reference to the Author's Guild case here:http://www.authorsguild.org/pdfs/freelancedecision.pdf

Deleted member 42 · Mar 30, 2011

ResearchGuy said:
Interesting. That seems to have escaped the attention of the intellectual property attorney who recently spoke to the publishers/authors organization I am in.

He was pretty clear: no registration, no lawsuit for infringement.

You have a period of time to file the registration. You can sue for infringement w/o registration, but likely will not receive anything other than court costs, if you win.

IANAL, but I've served as an expert witness on at least one case where the registration was made after the author decided to sue.

It boils down to the potential for punitive damages, I think.

Go here: http://www.copyright.gov/circs/circ1.pdf

LOC circ1.pdf Copyright Basics said:
Copyright Registration

In general, copyright registration is a legal formality intended to make a public record of the basic facts of a particular copy* right. However, registration is not a condition of copyright protection. Even though registration is not a requirement for protection, the copyright law provides several inducements
or advantages to encourage copyright owners to make regis* tration. Among these advantages are the following:
• Registration establishes a public record of the copyright claim.
• Before an infringement suit may be filed in court, regis* tration is necessary for works of U.S. origin.
• If made before or within five years of publication, regis* tration will establish prima facie evidence in court of the validity of the copyright and of the facts stated in the certificate.
• If registration is made within three months after publica* tion of the work or prior to an infringement of the work, statutory damages and attorney’s fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner.
• Registration allows the owner of the copyright to record the registration with the U.S. Customs Service for pro* tection against the importation of infringing copies. For additional information, go to the U.S. Customs and Border Protection website at www.cbp.gov/xp/cgov/import. Click on “Intellectual Property Rights.”
Registration may be made at any time within the life of the copyright. Unlike the law before 1978, when a work has been registered in unpublished form, it is not necessary to make another registration when the work becomes published, although the copyright owner may register the published edition, if desired.

WriteKnight · Mar 30, 2011

Actual damages as opposed to statutory PLUS actual damages.

If unregistered - you can win actual damages. That is, prove loss of income for instance. If someone sold ten thousand copies at ten dollars apiece - that is assumed to have been YOUR money rightly - you have 'lost' that income -therefore it can be awarded.

Statutory damages includes a penalty for EACH AND EVERY violation - which can quickly add up.

Pete Morin · Mar 31, 2011

My apologies for over-simplifying - the lesson learned is not to post after midnight. (As the avatar says, "slightly daft.")

The point was intended to be that registration is not necessary to own the property right in the work.

Registration is the vehicle through which you gain the right to sue - even if you never registered before the infringement occurred.

Poor man's copyright

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