(Un)Fair Use of Unpublished Letters

I have just returned from Yale University where I had a Beinecke Library Fellowship for a research project on modernism, intellectual property, and the academy. In the course of my work, I have come across a number of intriguing questions concerning modern authors and the use/abuse of their copyrighted writings. Here is one I thought might appeal to this list:

As anyone knows who has perused auction catalogues (particularly rare book and manuscript catalogues), many auction houses routinely advertise authors' unpublished letters by quoting large portions of these documents or in some cases by quoting texts of letters entire. This practice would seem to constitute an unfair taking of copyrighted material and hence a likely infringement, since the auction house would have a hard time mounting a defense of fair use, as a) the proportion taken is often large or total, b) the purpose of the taking is entirely commercial (benefiting the auction house and the consigner of the document, unless of course the latter also happens to be the copyright owner, which is rare).

If I am correct in the above analysis, why is it that I have not heard of any infringment suits brought by authors' estates against auction houses, although certain estates watch narrowly the comparatively harmless activities of scholars (whose takings are usually in the realm of fair use)? I may just have missed the news of litigation against auction houses, of course, and I would be interested to learn of any cases or of any analogous scenarios that members of this list can think of. Curators of the Beinecke Library came up with some analogous or ballpark scenarios, but nothing directly bearing on my question.

Any thoughts that this posting inspires would be of interest to me.

Sincerely,
Robert Spoo
Associate Professor of English
Editor, *James Joyce Quarterly*
University of Tulsa
<ENGL_RES[_at_]centum.utulsa.edu> Received on Thu Oct 26 1995 - 00:46:20 GMT