RE: Re: Copyright of received correspondence

From: Scott L. Baker <sbaker[_at_]scottbakerlaw.com>
Date: Fri, 11 Feb 2005 16:45:31 -0500

I assume you are talking about the Negativland case?

-----Original Message-----
From: CNI-COPYRIGHT -- Copyright & Intellectual Property [mailto:CNI-COPYRIGHT[_at_]cni.org]On Behalf Of S. Martin Keleti Sent: Friday, February 11, 2005 11:31 AM To: CNI-COPYRIGHT -- Copyright & Intellectual Property Subject: [CNI-(C)] Re: Copyright of received correspondence

The law in the U.S., certainly as to post-1978 correspondence, is that the sender keeps the copyright; the recipient only has the right to the tangible copy (which may be kept, sold, given away or destroyed, under the First Sale Doctrine), not the right to reproduce the (automatically) copyrighted work embodied in the copy. As someone else noted, whether publishing it would constitute infringement is another matter; the fair use defense might apply. Without knowing more about the publication, it's not certain. Depending on the contents of the letter, one might be able to argue that the matter was not copyrightable, due to the merger doctrine (if there was no other way of expressing the ideas, but there usually are countless ways of expressing much the same thing--the examples that you give suggest a wide variety of possibilities) or the brevity of the message (phrases and slogans, by themselves, aren't eligible for copyright protection), but that would probably not be the best course of defense.

There's the theory; you asked for the legal issues. The practicalities are something else. Usually no one bothers.

I can recall an instance, however, where a lawyer at the firm where I was working registered the copyright in a letter he had written (then only $20) in the client's name (as claimant not author--by virtue of an assignment, not a work for hire), and sued for its infringement (too late for statutory damages, but the matter was still pursued). This ensured that the matter was made into a federal case (literally). The letter had been reprinted in a book. The matter settled.

You didn't ask for advice, however, and this doesn't constitute it, either.

At 11:10 AM 2/10/2005, James Love wrote:
>This is a pretty basic question, but what is the law with regard to the
>copyright on a letter that you receive from someone. If one gets a cease
>and desist letter, a rejection of an article, a letter of recommendation,
>or countless other letters or emails specifically sent to a person, can
>the person receiving the letters publish them in a book, a web page, etc,
>without permission? I see a fair amount of this taking place, but don't
>fully appreciate the legal issues.
>
>Jamie
>
>--
>James Love, Director, CPTech, http://www.cptech.org
>
>Consumer Project on Technology in Washington, DC
>PO Box 19367, Washington, DC 20036, USA
>Tel.: 1.202.387.8030, fax: 1.202.234.5176
>
>Consumer Project on Technology in Geneva
>1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland
>Tel: +41 22 791 6727
>
>Mobile +1.202.361.3040
>james.love[_at_]cptech.org

S. Martin Keleti
Cohen and Cohen
740 North La Brea Avenue
Los Angeles, CA 90038-3339
323.938.5000
323.936.6354 fax

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Visit the CNI-COPYRIGHT e-mail list archive at <https://mail2.cni.org/Lists/CNI-COPYRIGHT/>. Received on Sat Feb 12 2005 - 02:45:31 GMT