Poor Man’s Copyright – Newsome v. Oldham
Hardly a week goes by without a discussion on the Internet about the legendary “poor man’s copyright.” This theory posits that an author may prove he is the creator of a work at a particular point in time by mailing himself a copy of the work, which is kept in the sealed envelope until such time as it may be needed. With the near ubiquity of email and the use of the Internet (especially by authors intent on selling their work), the old mailing tactic might just as easily be employed by one emailing himself a file.
With the advent of the Lanham Act, such quaint tactics are no substitute for registration with the United States Copyright Office, a process that takes minutes and costs only $35.
Nevertheless, the time may come when an author whose work is unregistered would discover her novel to have been stolen – perhaps by an unscrupulous beta reader – and fraudulently registered. Upon discovery, that unfortunate author might seek to register her own manuscript (as she must in order to maintain an action for infringement), which the USCO will not approve in light of the prior registration. Alternatively, the fraudulent author might (with breathtaking temerity) maintain an infringement action against the true creator.
How would the victimized author fare in her quest to prove she is the original artist?
In one online discussion recently, a fellow insisted (obstreperously, if an ad
jectiveverb is useful) that the victim’s testimony about self-mailing her manuscript would be “blown out of the water with ease” by any half-assed lawyer schooled in copyright law. Why, such a process is rife with fraudulent possibilities itself. Highly unreliable. Of no probative value. Laughable. Any lawyer who argued to the contrary was a charlatan, an incompetent boob.
Well, this was quite a challenge, maintaining one’s cool in an Internet forum against the insistent claims of one with little to no knowledge of evidentiary law.
Alas, I could find no precedent in the federal caselaw database that touches on this issue, although there are plenty of cases that discuss the presumptions that attach when a package is mailed to the correct address, etcetera. In the copyright field, there is no exception made against any particular method of proving the existence of prior work. Evidence is admissible or not, and given whatever weigh a judge or jury deems appropriate. The poor man’s copyright, whether by US mail or electronic mail, suffers no more or less scrutiny than any other evidence of creation. One would presume in this day and age that multiple prior drafts, Word-based time-stamps, participation in writers’ groups, etc. would represent far stronger and better evidence of creation than the PMC. But what would happen if those avenues of proof were unavailable?
With a few hours to spare on a glorious day, I put on a black robe and played Judge. Here’s my decision:
UNITED STATES DISTRICT COURT
DISTRICT OF LIBRA
MEMORANDUM AND ORDER
The Plaintiff (“Newsome”) holds a copyright registration for her novel, “Sex Life of Bees,” which she registered with the United States Copyright Office on December 11, 2010. She brings this action for injunctive relief and damages under [statutory reference] against the Defendant (“Oldham”), alleging that the Defendant’s unregistered novel, “Bee Sex,” infringes on her copyright.
In response, Oldham counterclaims, asserting that Newsome’s registration is fraudulent, and that the United States Copyright Office (as third-party Defendant) should revoke the registration and approve her countervailing application. Oldham claims that, contrary to Newsome’s registration statement, she, not Newsome, is the true author of the work.
This case presents the issue of whether proof of Oldham’s so-called “poor man’s copyright” is sufficient to defeat the registration of Newsome’s work on the basis of fraud, entitling her to dismissal of the Complaint and judgment on her counterclaim.
The Defendant, a self-confessed “Luddite,” is an author of fiction. Despite the meteoric rise of digital publishing and the almost ubiquitous use of computers for the creation of word documents such as novels, Oldham relies on an antique mechanical typewriter to produce her work, and does not use a computer for correspondence purposes (i.e., email) or to “surf the internet.” She testified at trial that she places a time and date notation in the upper-left corner of each successive draft of her manuscripts, and only when she has completed her manuscript does she share the work with others, known as “beta readers.”
In this instance, Oldham shared a completed manuscript of “Bee Sex” with three individuals, whose names are immaterial here. What is material, however, is that one of the recipients of the manuscript is the cousin of Newsome, a fact of which Oldham was unaware until after discovery commenced in this action. Oldham did not mail these drafts, but hand-delivered them to the recipients during bi-weekly “writers group” meetings, and received from them in return those very drafts, with the beta readers’ hand-notations.
Unfortunately for Oldham, none of the “beta readers” were available to testify in this matter, as they have all passed away. Against the Plaintiff’s hearsay objection, the Court has admitted the several draft manuscripts containing the hand-written notations of her deceased beta readers, as they have not been offered to prove the truth of the comments or the manuscript, but only the fact that they were made. The drafts are admissible, and the Court has given them weight as to the fact of drafts in existence at the times Oldham stated; but the Court makes no finding as to the identities of the recipient beta readers.
The sole remaining – and principal – evidence of Oldham’s claim that she is the author of the work is her testimony, supported by evidence, that she mailed herself a copy of the final, completed manuscript on January 3, 2010 – eleven months before Newsome registered her copyright in the work.
Newsome argued strenuously that Oldham’s “poor man’s copyright” was unreliable, inadmissible, and of no probative value in determining whether Oldham had indeed completed the manuscript as of the date of mailing. The thrust of his argument might have been persuasive, based upon the lack of any other evidence that would support the date of creation Oldham claims. But Oldham’s testimony, and that of her family, regarding her aversion to computers, was credible and persuasive.
Oldham’s testimony regarding her mailing the manuscript, and the sealed manila envelope with postmarked date, was sufficient evidence to carry her burden of proof that the manuscript contained in the envelope existed at least at the time it was mailed.
Newsome’s attacks on the authenticity and reliability of the mailed envelope and its contents miss the mark. Her expert witness on the type font and ink used by Oldham’s typewriter did not carry her burden of disproving that Oldham’s manuscript was typed when she claimed. The thrust of his testimony was simply that it was “quite easy to reproduce” the font and ink. Under cross-examination from Oldham’s counsel, the expert acknowledged that he could not state with any degree of professional certainty that either the ink or the font were, in fact, reproduced, only that it was possible.
Likewise, Newsome’s experts in postal procedure, envelope sealing glue and mailing anomalies failed to persuade this Court that the mailed manila envelope was more likely than not a fabrication. It is not enough for an expert witness to establish that a package could have been fraudulently procured, that Oldham could have mailed herself an empty package, complete with excessive postage, and inserted the manuscript after the fact, in effect, back-dating her claim of prior ownership. Newsome’s burden is to show by a preponderance of evidence that Oldham did, in fact, manufacture this evidence. She failed that task by a wide margin.
Newsome’s counsel would have the Court believe that with forethought, Oldham mailed herself an unsealed empty package, and held onto that package until such time as Newsome sued her, when she inserted a fake manuscript for the purpose of defrauding this Court. Absent a shred of tangible, admissible evidence to support Newsome’s outlandish theory, Oldham carried her burden of proof that the mailed package was authentic. Plaintiff’s counsel is advised to exercise heightened discretion in his attention to his obligations under Rule 11.
In order to demonstrate copyright infringement, Oldham would have only to demonstrate that Newsome had “access” to Oldham’s manuscript, and that Newsome’s work was sufficiently similar that a copying of Oldham was more likely than not [citations omitted]. Oldham’s testimony that she had shared her manuscript with Newsome’s cousin, and Newsome’s admission that she and her cousin were business partners, is sufficient under the Lanham Act to carry Oldham’s burden of proof that Newsome had access to Oldham’s prior work.
As for similarity, there is no doubt. This is not a case of borrowing. It is a case of wholesale theft. The verbatim identicality of vast portions of Oldham’s work in Newsome’s leaves little doubt in this Court’s mind that Newsome could not possibly have fixed so many words in such exact duplication without having seen the original work. This striking example of plagiarism and intellectual theft supports further the supposition that Newsome in fact copied Oldham’s work.
The Plaintiff’s application for injunctive relief is denied, and her Complaint is dismissed with prejudice.
The Defendant’s counterclaim is allowed. The United States Copyright Office is ordered to cancel the registration of The Sex Life of Bees and to process Oldham’s application for registration of “Bee Sex” in the ordinary course.
While the Court admires the Defendant’s steadfast aversion to contemporary technology and devotion to the “old ways,” the Court cannot, unfortunately, allow her ideological beliefs to exempt her from longstanding precedent with respect to asserting a copyright infringement claim. Her registration must, if approved, be approved currently. The Court has no jurisdiction to award her relief open to registrants until the work is, in fact, registered. Should Newsome withdraw her work from the marketplace prior to Oldham’s registration, no infringement action shall lie.
The Court retains jurisdiction of this matter pending the application of Oldham for final dismissal. Oldham is awarded double costs.
 Applicable precedent dictates that the application for registration is sufficient to confer standing on a party challenging an existing registration on the basis of fraud.
 The “poor man’s copyright,” as asserted here, involves the use of the US Mail as a means of proving that the contents of a certain envelope were in existence at the time stated on the postmark. [citations omitted]. Although the matter has been debated and discussed ad nauseam on social media websites [citations omitted], this Court is aware of no precedent in which the process has been adjudicated within the context of copyright litigation.
Filed under: Uncategorized | 13 Comments
Tags: infringement, poor man copyright, publishing