Supreme Court Provides Fresh Incentive for Timely Copyright Registration
The case for registering copyrights as a matter of course is getting stronger and stronger.
Earlier this year, the Supreme Court issued two new rulings on matters involving copyright infringement. The more significant ruling came in Fourth Estate Benefit Corp. v. Wall-Street.com, LLC., where the Court held that claims for copyright infringement filed after applying to register but before the actual issuance of a registration certificate were untimely. The ruling resolved a split among the circuit courts and dealt a blow to prospective copyright plaintiffs in, for example, the Ninth Circuit, where the filing of an application alone had been considered sufficient previously.
The issue may seem trivial, but it can have significant consequences. Applications to register copyrights can take a year or more to be fully processed, which means claims based on previously unregistered works can easily be lost to the statute of limitations if they aren’t pursued promptly. Therefore, the case reflects a fresh reason to add to the list as to why registering works as a matter of course as soon as they are created is a good idea.
In addition to being a prerequisite to bring suit, timely registration can entitle plaintiffs to substantially greater damages in the event the registered work is infringed (and also reimbursement for attorney fees and court costs, as discussed in the other Supreme Court opinion on copyright infringement from this year). It is of course true that most registered works will never be sued over, but with the fees associated with registration relatively low—filing fees payable to the Copyright Office are usually in the range of just $35 to $55—the resulting peace of mind and, on the off chance a work is infringed, leverage during licensing discussions can be well worth the price.
Eric has assisted many clients with copyright registrations and offers rates competitive with discount services like LegalZoom in this area.
FINDING VALUE IN THE "Poor Man's Copyright" PRACTICE
While the benefits don’t come close to matching those of formal registration, the practice known as “Poor Man’s Copyright” has some merit that previous commentators have largely overlooked.
If your work is anything like Robert Therrien's Under the Table, you probably shouldn't spend the money to mail a copy of it to yourself. Otherwise, however, it's not the worst thing you could do.
I recently heard a pop theory that if you don't want to spend the money to register a work with the Copyright Office, you can get the same or similar protections by simply mailing a copy of it to yourself. The practice has been dubbed "Poor Man's Copyright," and as best I can tell, is based on the theory either that the postal service automatically confers heightened legal significance on the works it carries, or else that the postmark on the envelope or package will help establish a date of creation, which could be legally significant.
Unfortunately, but hopefully not surprisingly, the first explanation is simply wrong and has no basis in the law. If you're considering mailing your work to yourself for that reason, therefore, I'd encourage you to save yourself the postage (which could be significant if you're, say, a sculptor!). The second explanation has some merit that previous online commentators seem to have overlooked, however. While I don't dispute their conclusion that the theory has never been dispositive or even highly valued in any published court opinions, I see at least a potential value for it that prevents me from dismissing it outright.
The question of whether your work existed as of a given date can certainly be significant in a copyright infringement action. For example, if someone claims your work infringes theirs, establishing that your work already existed at the time theirs was created would be extremely helpful to your case. A postmark on a sealed envelope containing your work isn't the worst way I can think of to prove that your work existed as of the date listed. It may not be the only way, or even the easiest way. For that, I’d suggest e-mailing the work (or a picture of the work) to yourself. The metadata associated with that email will be at least as valuable as evidence as a postmark and doesn’t require the same kind of special handling to maintain its integrity. But the postmark isn’t meaningless.
Admittedly, the evidentiary value of the postmark declines where you're trying to establish that someone else infringed your work. That's because proving your case in that regard requires not only that your work existed before the defendant's, but that the defendant accessed it prior to creating his or her own work (among other requirements). Since whatever evidence you produce for the "access" element will likely also establish that your work existed first (e.g. an upload date on SoundCloud or YouTube), and since the postmark itself does nothing to show access, the postmark evidence will be superfluous in this situation.
Of course, actually registering a work with the Copyright Office does more than just establish your work existed as of a given date (although it does that too). In fact, a timely copyright registration can entitle you to heightened damages if someone infringes your work, and registration is a pre-requisite to filing an infringement lawsuit in the first place, which means you’ll have to formally register your work to bring an infringement action down the road anyway. Poor man’s copyright should really only be on the table, therefore, if the copyright registration filing fees (currently $65 for a single work) are prohibitive for you at the moment and/or if the likelihood of infringement is very low and you’re comfortable with the gamble. If that’s not the case, while there might be some merit in the poor man’s copyright practice, it probably isn’t for you.
A Copyright Term Case Study - Exclusive Rights in a Film from 1906?
The Public Domain seems to be slipping from our popular consciousness, and that could cost you.
More than once in my career, I've had clients ask me to clear rights in works that are hundreds of years old. I've responded by noting that these works are in the public domain, so can be freely used without a license. This outcome is a small victory for my clients—it's always nice to save them a bit of money in licensing and legal fees—but the requests themselves reflect a common misconception about the nature of copyright.
This photo from the days following the 1906 earthquake in San Francisco, like all works dating from that year, is in the public domain.
I see it all the time, including most recently in the context of the newly discovered film footage from the aftermath of the 1906 earthquake in San Francisco. You might have caught the story on NPR, or read about it in the New York Times. It's really fascinating, so it's worth looking into if you haven't. In short, 112 years ago, a pair of filmmakers known as the Miles Brothers shot about nine minutes' worth of footage while traveling down Market Street in San Francisco just days after a devastating earthquake had ravaged the city. The footage was thought lost until recently, and the revelation that that isn't the case has a lot of people (including myself) eager to take a look. For now, however, most of us are out of luck. The only people who have actually been able to see the film are those who snagged a ticket to one of the sold out performances in San Francisco theaters. The news coverage concerning the footage takes this fact in stride, never thinking twice about the discoverers' right to restrict access in this way.
The current copyright law in the United States, which was enacted in 1976 and went into effect in 1978, offers copyright owners certain exclusive rights until 70 years after the death of the works' "authors" (ignoring the separate terms for works made for hire and other nuances not relevant here). This term is far longer than the one under the predecessor Copyright Act, which dated to 1909 and offered copyright owners just 56 years of exclusive rights. Neither of these laws impacted the copyright in a film shot in 1906, however, which was instead governed by a law enacted all the way back in 1790. As amended in 1831, that law provided a maximum of just 42 years of copyright protection. When the term of copyright expires, works pass to the public domain, meaning neither authors nor anyone else can exclude people from copying, disseminating, altering, or otherwise using them however they want.
By any measure, assuming it even qualified for copyright protection in the first place, the Miles Brothers' film is squarely in the public domain under the law, and has been for more than half a century. Nevertheless, access and, apparently, the ability to re-record the film via cell phone cameras and post it online have been seriously restricted, which is tantamount to an assertion of copyright in it. This amounts to a circumvention of the time limits to the term of copyright, which are mandated by the Constitution itself. That is, the Constitution allows Congress "[t]o promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." I understand there's a possibility at least some of the Miles Brothers' film may be put online some time this summer, but that hardly feels good enough when the work is in demand, is sitting in a digitized form on someone's computer somewhere, and has been in the public domain for decades.
You might be thinking about the Mona Lisa, for example, another work that is clearly in the public domain, and wondering what's so bad about charging people admission or otherwise restricting access to a work just because it's outside of the term of its copyright. After all, the Louvre isn't cheap. The distinction has to do with the difference between the exercise of rights in a physical embodiment of a work and in the work's "intellectual" manifestation. The Louvre can charge admission to those who want to see the original canvas, just like those in possession of the actual, original Miles Brothers' film reels can restrict access to them. Neither the Louvre nor anyone else can prevent you from posting a copy of the Mona Lisa on your website, however. In fact:
See?
It's frustrating to have access to (or the ability to make) mere copies of a public domain work restricted, and even more frustrating that people don't seem to mind. I fear that the very notion of the public domain is slipping away from our popular consciousness, which can lead content creators to incur unnecessary licensing costs and legal fees, or even worse, prevent them from using their preferred means of creative expression altogether. If you're in this group, I encourage you to think twice, and maybe even consult an experienced lawyer, before seeking a knee jerk clearance out of a feeling of legal necessity.
If you have questions about your use of a work that you think may be in the public domain, please contact Eric to schedule a free consultation.