Back in my hay-day, I was an aspiring musician playing bass for the legendary alt-rock band, Doozer. Well, to be fair, we were far from legendary and I don’t suppose I’d call that my hay-day. I was 15, after all. Nevertheless, we recorded our one and only E.P., “Sofa Kingdom,” on some beat-up analog four-track and wanted some form of legal production. Putting aside the fact that I couldn’t imagine why anyone would possibly steal our songs, we were broke junior high students who needed a cheap copyright alternative. Hence, we went the old “Poor Man’s Copyright” route.
For those unfamiliar with this concept, the “Poor Man’s Copyright” (PMC) is the theory that one can protect one’s recorded music by mailing a copy of it to yourself and not opening it. Thus, there is a time stamp on the envelope to support the origin of your creation. Theoretically, you would muster up your best Clarence Darrow impression, call the court’s attention to your damning evidence, and open the sealed envelope before a packed courthouse to demonstrate that you, and not some American Idol-wannabe impostor, wrote and recorded the song first. Sure, this method is cheap and easy, but it’s generally useless.
Breaking down this Swiss cheese-holed legal theory, there’s good reason your local Johnnie Cochran is not recommending this approach. First, how can you prove that you didn’t carefully open the envelope and then reseal it with unoriginal work? Second, how can you prove that the recording is yours? Sure it sounds like you, but is it really you? Did you just karaoke along to someone else’s music? Did you just play a cover of a previously established, but unpopularized song? Third, anyone with a stamping machine can back-date an envelope. (This is a handy trick when you just missed an application deadline, but I did not recommend that to you…) Fourth, who says the recording is still audible? If it’s been in an envelope under your little brother’s bed for the past eleven years, how are you guaranteed that it’ll still work? Simply put, all that a PMC proves is that you mailed something to yourself on a certain date.
The U.S Copyright Office, undoubtedly flooded with PMC questions by Doozer cover bands, has even included a blurb on this topic in its FAQ’s:
I’ve heard about a “poor man’s copyright.” What is it?
The practice of sending a copy of your own work to yourself is sometimes called a “poor man’s copyright.” There is no provision in the copyright law regarding any such type of protection, and it is not a substitute for registration.
The term “copyright” is a term of art often misused. In short, copyright gives the author of a creative work the legal exclusive right to control the copying of that work. And here’s the good news: copyright automatically attaches the moment you fix the work in a tangible medium. Here’s the bad news: if you really want to protect your work you had better register the material with the U.S. Copyright Office.
Why? Thanks for asking. There are a ton of benefits. First, registered copyrights put the world on notice of what you got and hopefully discourage impostors from trying to steal it. Second, registration within five years of an infringement claim is prima facie evidence that it’s your material. Even better, registration within three months of an infringement claim makes available statutory damages and attorney’s fees. Otherwise, you can only claim actual damages and profits. Third, someone who doesn’t realize that they infringed on your work cannot use the “innocent infringement” defense if your work is registered. Fourth, you cannot file an infringement suit in court without registration. This is not a good position to be in.
So, if you got a demo and some extra cash hanging around, might I recommend the copyright route. It’ll cost more than a stamp, but it’ll be worth it once you can legally slap on a fancy © symbol next to your work.