12.03.2005

More on letters and copyright

Well, the original comment sent Miss Snark scurrying to the internet to see what those clever lads in Congress have been up to since she last thought about copyright on personal letters.

Here's what turned up at PubLaw:

Allegations involving copyright infringement frequently occur when the author of an unauthorized biography makes use of the subject's published or unpublished letters and papers or possibly from oral conversations the author may have had with the subject.

In Salinger v. Random House, Inc., the author's use of extensive quotations from unpublished letters written by J.D. Salinger, the subject of the biography, without Salinger's permission was deemed to be copyright infringement. Under copyright law the writer of unpublished letters has the right to control the first publication of those letters.

Criticism of the Salinger decision as well as other copyright infringement decisions based upon what was believed to be excessive protection for unpublished works, resulted in Congress amending the Copyright Act. U.S. copyright law now provides that if a work is unpublished and it is used without permission of its author then the fact that the work was unpublished by itself would not be sufficient to constitute copyright infringement.

Subsequently, in Wright v. Warner Books it was held that when a work is one of "criticism, scholarship or research," that quotations from unpublished personal letters and journals might constitute fair use.

In Estate of Hemingway v. Random House, Inc., which concerned the publication of portions of conversations between the author and Ernest Hemingway, the court ruled that the author of Papa Hemingway did not infringe the common law copyright of these conversations by including them in a book on Hemingway's life. The court stated that even if the author used verbatim some of Hemingway's words that such use was minimal and qualified as fair use of the material.


Emphasis is mine to highlight the parts that seem to apply to what we're talking about. I think I was confused when I originally said "letters belong to the recipient"; confused between the concept of ownership of the actual physical letter, and ownership of the content. It does seem clear that the original commenter (and Writers Digest!) is correct in saying copyright attaches to the creator of a work even if it's a personal letter.

But copyright in and of itself is not at issue. What started the exchange was the idea that I'd have to "get permission to use the letters" if I compiled a book on bad queries. (Don't worry Snarklings, Miss Snark isn't intending any such thing). Even if I printed, verbatim, every query letter I received for a year (A Year In the Life of Miss Snark!), you'd be hard pressed to sue for damages (if such a loathsome thought occurred to you) because you can't sue for damages unless you register your work. Invasion of privacy maybe, but not copyright.

Copyright violation is a civil action, not a criminal one. The State of New York will not enforce the civil code against copyright infringement on your behalf, but it will enforce the criminal code of ..for example..no murdering literary agents, on my behalf.

But, by sending me an email, you grant implicit consent that it can be published on this blog. So watch out; no threats to stew Killer Yapp or I'll sic PETA on ya!

7 comments:

Ric said...

Out here in the great Midwest, we dress in our raccoon coats, doe leather moccasins and calf leather gloves while we run the PETA folks out of town on a rail.

Farm kids, whose college was paid for by milking cows and raising beef, have little use for such nonsense. My Aunt had a mink farm as well and sent all six of my cousins through school.

As before, Killer Yap is safe - if only from the fear of his owner's stilletto heels swinging through the flake filled air.

(Flake being the operative word here)

Sarah said...

So while we're on the subject of copyright...

In my novel I use the lyrics of several songs. Is it my job, or the job of my agent/future publisher, to get permission to use them? And do I also need permission to use quotes from real people?

Miss Snark said...

Yours.
No.

Serenity Now! said...

Allow me to enter meekly.. you do not have to register your copyright to enforce it. Any written work is automatically copyrighted to the author. You do NOT have to register it.

According to www.copyright.gov

"When is my work protected?
Your work is under copyright protection the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device."

"Do I have to register with your office to be protected?
No. In general, registration is voluntary. Copyright exists from the moment the work is created. You will have to register, however, if you wish to bring a lawsuit for infringement of a U.S. work. See Circular 1, Copyright Basics, section “Copyright Registration.”"

See for yourself:

http://www.copyright.gov/help/faq/

Miss Snark said...

There's a difference (and a big one) between enforcing copyright and collecting for damages. You can enforce all you want; it just means the other guy has to stop using your stuff. If you want to collect damages, it has to be registered.

My source on that info is the exact same site you quote.

Ellen said...

Sarah, it will be your job to get permission to use the lyrics, and that includes paying whatever fees the copyright holder asks for. Besides being expensive, it is an enormous pain in the butt to track down copyright holders and get written permission. I'm curious for Miss Snark's opinion on this, but speaking from the trenches, I'd advise you to delete the lyrics if at all possible. I spent months and quite a bit of money getting permission for the few snippets of songs I quote in my first novel, and have vowed that I will never use lyrics again. Ever.

Good luck, Sarah!

countessolenska said...

Maybe this helps?

1. You own the copyright in your work as soon as you "fix it in a tangible medium of expression" -- write it down, save it to your computer, etc.

2. Copyright infringement is a federal offense, decided in federal courts (different from the state court system) which carries civil and, possibly, criminal penalties.

3. You cannot bring a lawsuit for copyright infringement unless and until you have registered your work with the US Copyright Office.

4. If the infringement occurs prior to registration, you can't collect statutory damages (as opposed to actual damages) and attorneys fees unless you registered your work within 3 months of first publication. If you fail to register your work within 3 months of publication, you can only sue for actual damages (which probably won't amount to much if the infringer is, e.g., a blogger).

5. If your work remains unpublished and the infringement occurs before you register it, you can nevertheless sue for actual damages.

6. If the infringement occurs after registration, you can sue for statutory damages -- $750-30,000 (up to $150,000 for willful infringement; down to $200 for innocent infringement) -- which benefits you if actual damages would be minimal. You can also sue for attorneys fees and court costs.

7. Publishers are supposed to register your work with the Copyright Office within 3 months on your behalf, but goofs happen. Double check.

8. Oral statements (e.g., George Clooney's Access Hollywood quips) aren't protected by copyright so you can quote them willy nilly. But be 100% certain that you're quoting an oral statement, not a statement that's subsequently been "fixed in a tangible medium of expression" and thereby acquired copyright protection.