How Will Courts Handle A “Poor Man’s Copyright”?

I recently came across a complaint (in Vernon v. CBS) referencing a “poor man’s copyright,” and I couldn’t recall seeing the term in a legal filing or document before. This made me curious about whether any courts had discussed the term, so I searched for the term “poor man’s copyright” in Westlaw and Lexis and found three cases:

1) Smith v. State, 901 N.Y.S.2d 902 (N.Y. Ct. Claims July 14, 2009):

Mr. Smith provided Mr. Beer with the final version of his screenplay bearing a date of September 19, 1997, information on the movie and two sealed envelopes which Mr. Smith claimed contained prior drafts of “Inner Mind’s Eye”, which he had mailed to himself as a poor man’s copyright….

Mr. Ferber met with the claimant and Mr. Beer that Friday, August 11th. Claimant and Mr. Beer brought the two sealed envelopes, one postmarked April 1995 and the other November 1996, allegedly documenting the poor man’s copyright of “Inner Mind’s Eye” and a Writers Guild registration, the date unclear….

The Court finds that “Inner Mind’s Eye” bore the badges of fraud and the thumbprints of the infringer; Mr. Smith’s alleged embedded signatures do not withstand scrutiny or are otherwise of no significance; his poor man’s copyright was bogus; he altered the Hudlin Bros. letter and inserted the reference; his alleged early draft contains portions of a book written years after the alleged date of Mr. Smith’s draft.

The Court additionally notes Mr. Smith’s failure to produce documents and witnesses that would have supported his claim. For example, he failed, at this as well as at the criminal trial, to produce the alleged envelopes and drafts sealed therein which he asserts demonstrate his poor man’s copyright. He also failed to produce a number of individuals, including friends, who he claimed, at his deposition, to have purportedly read versions of “Inner Mind’s Eye” in the early 1990’s and who still have copies of his screenplay. Significantly, he also failed to call as a witness Ms. Dwyer, his criminal defense attorney.

The State moved for an adverse inference from these and other missing documents and witnesses. The Court finds that these documents and witnesses were expected to give material, non-cumulative testimony or evidence favorable to claimant; that claimant did not offer a reasonable or any explanation for their non-production; and, they appear, particularly but not only as to Ms. Dwyer and the poor man’s copyright envelopes and enclosures, to be within Mr. Smith’s custody or control, or available by subpoenas.

2) Barefoot v. Goulian, 2010 WL 2696760 (E.D. N.C. July 7, 2010) (cites omitted):

According to Barefoot, Landis and Miller also had him placed in lockdown for “security concerns” when two witnesses, “Habitual Li[a]r[s],” were in the compound yard together and when Barefoot “utilized on Envelopes Poor Man’s Copyright to copyright multiple gospel, country, and Blue Grass songs.” Barefoot claims that Miller, a “so-called evaluator” and “quack,” also violated his rights to a speedy trial, and freedom of speech and religion. As for Elwood, Barefoot claims that he has racially-discriminated against him and violated his free speech and religion rights. Barefoot asserts that Elwood placed him in administrative segregation because of his “Religious Consciences to Yahwee [sic] the living GOD and for utilizing on envelopes and song’s [sic] poor man’s copyright.” Barefoot also alleges that Elwood “got caught tampering with [his] mail.”

3) Swensen v. Bender, 2008 WL 2382757 (Minn. Dist. Ct. Feb. 22, 2008): “Two years prior, Swenson had begun mailing her research results to herself to produce a paper trail, otherwise known as a poor man’s copyright.”

As you can see, none of the cases actually discuss the legal efficacy of a “poor man’s copyright.” The Smith case comes closest but ultimately sidesteps the question. There could be other cases addressing the copyright implications of a “poor man’s copyright” without using the term, but I didn’t try to find those.

* * *

To me, a poor man’s copyright refers to the situation when an author mails a potentially copyrighted work to him- or herself and uses the postmark to establish the latest date on which the work was created. (In modern parlance, we might now call it a “poor person’s copyright” to remove any gender bias). In theory, the author gains legally significant evidence for the mere cost of a postage stamp.

Unfortunately, those desired legal benefits are almost certainly illusory. As the Copyright Office says: “There is no provision in the copyright law regarding any such type of protection, and it is not a substitute for registration.”

Indeed, I cannot think of any meaningful evidentiary value of the postmark in copyright law. To establish copyright infringement, the author must show copying-in-fact and wrongful copying. The postmark has no relevance to the wrongful copying question.

The postmark might have more relevance to the copying-in-fact by providing evidence that the author’s work predates the defendant’s work. However, the postmark really doesn’t help because of copyright’s independent creation doctrine. It’s legally OK for two copyright authors to independently create the same work, and neither will be an infringer of the other in that situation. So even if the plaintiff establishes authorship priority, the plaintiff isn’t any closer to winning the case.

Instead, the plaintiff will still need to show the defendant actually copied the plaintiff’s work. If the defendant doesn’t admit copying and the plaintiff doesn’t have actual evidence of copying (such as eyewitness testimony), the plaintiff typically shows copying-in-fact circumstantially by showing the defendant had access to the work and the resulting work is suspiciously similar. The postmark has zero evidentiary value in showing that the defendant had access to the work; in fact, so long as the work remains in the sealed envelope, we know that the defendant couldn’t have copied that particular copy (though there may be other copies that could have provided access). In many cases, the plaintiff’s obligation to show the defendant had access to the plaintiff’s work before the defendant’s creation effectively establishes the plaintiff’s priority. So a postmark could help only if it undercuts the defendant’s ability to argue independent creation; and only if the plaintiff’s proof of access (and all other evidence about the dates of the parties’ activities) didn’t otherwise address the issue. I guess anything could happen in litigation, but the odds of the postmark providing the dispositive evidence seems very, very remote.

As the Smith case hints at, there are also some lurking issues about how and when to open the envelope to reveal the contents, but we don’t have any judicial clarification of that issue. In an era with digital data that generates time-stamps, might those time-stamps serve the same purpose with sufficient enough evidentiary reliability? For example, if I email a document to myself via Gmail, does Google’s time-stamp serve the same (virtually non-existent) evidentiary purpose for the “cost” of a free email?

In the pre-AIA days of patent law when the US law determined patent priority on first-to-invent, there was an analogous concept of a “poor man’s patent,” i.e., a postmark could provide evidence of patent priority because it could provide credible evidence of the latest date on which an inventor made the invention. There were numerous problems with this approach, including the possibilities that the activity still constituted secret prior use or disclosures (by the party or third parties) could trigger statutory bars, so a postmark was still a poor substitute for the priority date of an actual filing. Further, the AIA’s first-inventor-to-file rule mooted this approach by making inventorship dates irrelevant. A “poor man’s patent” might still help with a prior user defense, but only if the evidence provides proof of the defendant’s commercial use, not just the idea’s conception.

So feel free to mail your brilliant work to yourself if you want some self-fan mail; but don’t do it for any legal value. In my opinion, it’s literally not even worth the cost of the postage stamp.