Copyright protection for independent film should begin with its treatments, outlines, and script. It’s in these early documents that the filmmaker’s unprotectable ideas become “fixed in a tangible medium“—the moment that they change from being something anyone might have and something that only the author can claim. You can’t protect a mere idea with copyright, only the expression of the idea.
Ideas about how to protect those expressions, however, are abundant among indie producers, and they are all too often wrong. One persistent notion is the so-called “poor man’s copyright”. It’s the idea that mailing a copy of your completed script to yourself in a sealed envelope and never opening it until needed is irrefutable proof that the work inside belonged exclusively to you as of the date shown by the postmark. Copyright protection forever for the price of a Forever stamp is the thinking.
Another idea is that free registration of work with the Writers Guild of America (“WGA”) makes registration with the U.S. Copyright Office unnecessary. It’s also an inaccurate notion, but WGA registration at least does create valid legal evidence that can be used in court. It may be useful if there is a dispute as to authorship or sequencing of material by date. That’s better than the non-existent protection provided through the postal system. Most copyright disputes, however, are about contracts and allegedly infringing uses, not authorship.
Mailing your script to yourself will not protect your copyright.
The above ideas about copyright protection for your work are wrong for a couple of very important reasons. First, they provide at best minimally useful evidence of the date on which the work may have been created. Postmarks, for example, do not show the date on which the work was deposited in the mail. Nor are sealed envelopes with no documented chain of custody likely to even be admissible evidence. If they are, they are certain to be allowed only with a limiting instruction for a jury that will probably see them as having little persuasive value.
Second, even if a sealed envelope or WGA registration did provide indisputable proof of ownership of a work not registered with the Copyright Office, the value of that proof would be severely limited. Under 17 U.S.C. § 301(a), the federal Copyright Act preempts all state law claims alleging violations of rights that are equivalent to the exclusive rights protected by copyright. “Preempts” means that federal law applies to the dispute. And federal law is clear that without copyright registration, not only is the plaintiff (in this case, the author of the unregistered work) unable to sue in federal court, he or she would be limited to recovering economic damages that he or she can actually prove, if any. Most of the time, claims that infringement caused an author to lose some amount of money will be pure speculation.
Register your work with the Copyright Office instead.
In contrast, infringement of registered works entitles the plaintiff to statutory damages. These are amounts awarded by the court regardless of whether there is proof of actual economic loss.
The short answer? Save the stamp. Register your work with the Copyright Office.
Russell Lee, Redding, California. Motion picture show (1942).Prev: How will President Biden’s mandatory vaccination plan for large employers affect film and television productions? | Next: A closer look at how a federal private employer vaccination mandate could affect feature film and television productions.