The Myth of The Poor Man's Copyright

For the past 15 years, I have taught copyright law at a local college. Every year, without fail, I wind up in an argument with a student over the legitimacy of a so-called “Poor Man’s Copyright.” Folks, the Poor Man’s Copyright does not exist.

However, the myth is so pervasive that many of my students have told me that they were been advised by other professors of the important merits of this method.

Basically, the strategy is this: you take whatever work you have created that you want to protect (song, novel, epic poem, etc.) and mail it to yourself (sometimes the myth suggests certified or registered mail but I am not sure of the distinction for this purpose). The belief is that this somehow proves you created the work. In actuality, this proves that you mailed yourself a package.

The problem lies in a fundamental misunderstanding of copyright law. Our law provides that one’s copyright exists in an expressive work as soon as it is “fixed in a medium of tangible expression” (i.e., this is what creates the actual “copyright.”) The second step is registration of the copyright. Registration is not required to sustain a copyright. It is advisable, though, for purposes of proof AND it is a prerequisite to any sort of copyright infringement litigation. For those purposes, there are no short-cuts or alternatives to copyright registration; one must follow the procedures laid out in the Copyright Act.

I am not sure what the historical background of the Poor Man’s Copyright is. A quick Google search reveals that it is a system recommended to this day in several European countries where there is no central copyright registration authority. It also may date back to the days before the Copyright Act of 1976, when there were legal concepts like “common law copyrights” and other anomalies.

I suppose there is nothing wrong with mailing yourself a package, but please do not rely on that action as any sort of substitute for proper registration.

Americana Music Association Conference

To my friends in the Nashville area, or anyone who might be attending the Americana Music Association Conference this week, I am on a panel tomorrow (Thursday September 9) at 9:00 a.m. with my friends Webb Wilder, David Wykoff and John Allen. The topic is "Protecting Your Intellectual Property in the World of Indie Labels and Publishers." Speaking for all of us, I know we have some terrifying stories. Come by if you can. There are a number of interesting panels starting today and, of course, lots of great music between now and Saturday.

Niches: Let us Now Praise Kimberly Dawn

Although I consider myself a generalist, I have always been fascinated by niches: niche specialties of law practice, niche collectors, niche book publishing, and, of course, niche areas of the music business. One often reads or hears about niche areas of the music business that are thriving despite the economic downturn. Therefore, I was fascinated to learn about Murfreesboro’s Kimberly Dawn label, a label that specializes in releases of hand-packaged 3-inch CD-R’s, essentially EPs. The Nashville Scene wrote about the label and its specialty “moody atmospheric music.” This is a genre about which I know only a little (despite my admiration of Brian Eno), but I respect the fact that the label has built a network of collectors and musicians interested in its music. I am even more fascinated that the label elected to use the medium of the 3-inch CD, something that I thought died an ignoble death in the Eighties. The fact that only a few CD players can even play the things apparently ADDS to the attractiveness of the objects (kind of like when Cheap Trick released an 8-track version on their new album). I think Kimberly Dawn has a very interesting story and is a bright light in the local music business.