RE: Ownership of Papers?

Laches wouldn't have any relevance to long-unpublished works. Their creator owns the copyright in them for life+70 regardless of whether he ever claims the copyright or not. Laches would only come to bear if an infringement occurred and he delayed an unreasonable amount of time before taking action against the infringer--not the case in your hypo.

The most important thing in your story, as I see it, is the fact that the works are unpublished. Even in fair use analysis, courts give great deference to the original author's right to decide whether to publish his works or not. Numerous cases have found infringement where a use that might otherwise have been fair (quoting from letters in a critical biography, for example) involved works that had never been published. J.D. Salinger and Richard Wright are two authors' whose unpublished letters or notes have been protected against such uses largely because of their unpublished status.

A case for fair use might still be made out; but the better part of valor in this situation, in my view, would be to obtain permission.

Robert C. Cumbow
 Graham & Dunn PC
 1420 Fifth Avenue, 33rd Floor
 Seattle, WA 98101-2390
 206.340.9619
 206.340.9599 fax
 rcumbow[_at_]grahamdunn.com
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-----Original Message-----
From: carol [mailto:carol[_at_]yujean.com]
Sent: Wednesday, August 16, 2000 9:03 AM To: Multiple recipients of list
Subject: Ownership of Papers?

I need some advice on a situation that's come up a couple of times in a couple of different permutations. Here's the most recent:

Husband and wife divorce. Husband has papers, journals etc. from an interesting life he's led. Ex-Wife has possession of them -- with his permission. He doesn't say he'll want them back; he doesn't claim ownership in any obvious way. Years pass and she continues to keep the old stuff and collect new. The materials range from 1974 to 1999. Ex-Wife holds onto materials and spends money and effort hauling them around with her whenever she moves, etc. Husband and Ex-Wife remain friendly.

Ex-Wife decides to write a book about Husband's life and wants to use the materials, still in her possession, for reference and probably to quote.

None of the materials has ever been published; none has been registered for copyright. There are letters, journals, photos and sketches.

She has been trying to negotiate a permission from Husband but after initially saying okay, he's backing off. Says he wants "fair market value" for the materials. (Assume he's not famous and the fair market value is probably zip until and unless the book comes out.)

Can she quote from the materials and/or use the photos without his permission? Does the date of creation matter? Can she "invent" quotes that are very similar to things in the letters but come from her memory? Is it possible that laches applies and he's forfeited his right to claim copyright on at least some of the materials?

Thanks,
Carol Cricow

-- 
Carol Busby Cricow
Attorney at Law
Post Office Box 22438
Eugene, Oregon  97402
541-484-6860; fax: 541-484-3099
e-mail:  carol[_at_]yujean.com


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