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The myth about "the poor man's copyright" and other myths
By Brian Corber - 08/18/2007 - 04:10 PM EDT

One of the questions that I am often asked about pertains to the myth entitled “the poor man’s copyright.” 

In essence, this myth provides that:  “…if I mail a copy of my music to myself, certified, and leave the music in the envelope, I can 1) establish the date of existence of the music as of the date on the envelope and on the certification and 2) protect the copyright embodied in my music.”

If that was a jeopardy answer and you responded with the question:  “What is a poor man’s copyright?” you win the money.

If, however, that was a jeopardy answer and you responded with the question:  “Is this legally valid copyright protection?” the buzzer would sound and you’d be docked the value of the question.

Speaking only of copyright in the United States:  there is no such animal.  Pure and simple, end of story.  If you do this, you have not protected your copyright legally.

However, according to wikipedia, some countries in the world may accept and encourage this kind of thing for their domestic copyrights. 

So, in essence, how do you protect your copyright?  Ultimately the way you protect your copyright in your original creative tangible material is by way of a lawsuit for copyright infringement.  That’s the club you have in your tool box to protect yourself.  Ah ha!  But there are certainly legal pre-requisites to that lawsuit.  One is to follow the copyright law in securing the copyright, which includes the process of registration of that copyright with the Registrar of Copyrights in Washington, D.C.  When you file the lawsuit, the complaint that you file has to set forth (allege) that you followed the law and secured your copyright by registration and state the date of registration as well as the registration number assigned to your copyright.  That is part of the standard language in a copyright infringement lawsuit.  In some instances, you might attach a copy of the registered work to the complaint as an exhibit (but, obviously, you couldn’t do that with a D.A.T., CD or audio cassette.  But I do not believe that is required.  However, stating that you registered the work with the Registrar, stating the registration number and date must be set forth in the complaint.  Without these statements in the complaint, you’ll be thrown out of court on a little technicality:  “failure to state a claim upon which relief may be granted.” 

Registration, I know, is more costly than ever.  The copyright office just upped their fee per registration to $45.00.  That’s a lot more than the few bucks you pay for certified mail.  However, the certified mail process is a waste of time, effort and money.

Another alternative that might be used is registering your work with the Writer’s Guild of America west here in Los Angeles.  The fee they charge is $20.00 and can be done in person or on-line.  However, that does not constitute registration of the copyright, a pre-requisite to a lawsuit to infringement, your tool for protection, either.  It is supplemental protection, in truth, and might help to prove when your material existed but does not comply with the copyright law.  In an infringement lawsuit you could not state:  “well, I complied with the law by registering my music with the Writers’ Guild of America.”  Again, your lawsuit would be thrown out.

The way to save some money on registration with Washington is to register compilations of your music as one registration (you create 10 songs; register all 10 as one compilation instead of as 10 separate songs).  However, this process is a little more involved than registration through one-form (likely form SR) and you should check this with the copyright office or an attorney who knows about such things.  Basically a compilation would require form SR and then a form CA (to, essentially augment what you said in form SR, i.e.:  list each of the songs from your registered compilation).  This is still only one registration of a copyright.  By registering a compilation of 10 songs, instead of each song separately, you just saved yourself $405.00, not including postage savings and other incidental cost savings. 

It may sound like a pain, but if want to be a music business, this is part of doing business and protecting your rights.  In any case, if you do not register your songs with the Registrar of Copyrights, you have no protection and may as well not bother to begin with.

So, let’s recap:  you protect your music by 1) creating it in a tangible medium (such as a D.A.T. or CD or even on a hard drive (but there’s a problem there).  2) You register the copyright with the Registrar of Copyrights using the right form for the physical thing you are registering (like sheet music or a CD, which require different copyright registration forms).  3) You submit with your registration form a physical specimen of the song (sheet music or CD for example), either one or two copies depending on whether the work has been published or not.  And “published” here may not mean the same thing as “music publishing” as it is normally understood in today’s world.   4) You submit your payment of $45.00 (check or money order, don’t send cash and they don’t, as yet, accept credit or debit cards) made payable to the “Registrar of Copyrights.”  5)  You mail all that to the Library of Congress in Washington, D.C.  I usually recommend using priority mail with a confirmation receipt.  You wait for the Copyright Office to process your application which could take several months (although they will cash your check rather quickly).  You get back a stamped form showing date of registration and registration number.  Now, you are protected.  Or at least, now you’ve got the tool needed to sue someone for infringing on your music for the lawsuit.

Another issue that is as much a myth as the “poor man’s copyright” is the myth that by registering your music with ASCAP, BMI or SESAC, you have protected your copyright.  Nope.

Registration of a piece of music with a performance rights organization is not compliance with the copyright law, despite what you may be told about that process.

All registering with a PRO does is register the fact that you have granted the PRO a license to administer a specific part of your copyright royalty:  the performance royalty.  But, here’s another myth: the important registration is really when the so-called publisher of your song registers the song with the PRO.  Because it is the publisher of the song that essentially owns the copyright and can grant a license. 

So, here’s a connected problem that everyone ignores: if a work is not registered with the copyright office, there is essentially no right that can be legally protected.  So, licensing that work to a PRO is an illusion.  And when a PRO licenses that work to a broadcaster or a restaurant that, too, is an illusion.  Why?  If the PRO sues because some broadcaster broadcasted your song and your song’s performance royalty is administered by the PRO but there is no copyright registration with Washington of that song, the PRO cannot allege or prove that you as the author of the song complied with the U.S. copyright law and obtained registration of the music performed in the restaurant, for example.  However, PROs appear to license their whole catalogs (“blanket license”), featuring hundreds of thousands if not millions of songs and music and I seriously doubt whether every work in the PRO’s repertory has been legally registered with the Registrar of Copyrights. 

This is a ticklish area of the music business which most people seem to just assume.

Never assume anything.  Never presume anything. 

Well, I hope I dispelled the myths of “the poor man’s copyright” and related issues.

*******

Caveat: all statements in this article are the opinions of their author and not intended as legal advice or counsel; no warranty or representation is made as to the accuracy of such statements.  Should you desire legal representation, you should hire an attorney of your own choosing.  For more information, you may contact the author privately.

BRIAN LEE CORBER is an attorney practicing law in Los Angeles, California for nearly 30 years.  He has been emphasizing music business matters since the late 1990s and follows the news in the music world, which is constantly changing, daily.  He can be reached at CORBERLAW@musesmuse.com and (818) 786-7133.




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