Re: (Un)Fair Use of Unpublished Letters

At 7:40 PM 10/25/95 -0500, ENGL_RES[_at_]centum.utulsa.edu wrote:
>
> 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 advertise authors' unpublished letters by quoting large portions of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)? . . . .

The copyrights in these letters are usually not registered at the time of the alleged infringement (indeed, the copyright owner probably doesn't have a copy to deposit with the Copyright Office). In that event statutory damages and attorney's fees are unavailable. Actual damages arising out of the limited distribution of a catalog are likely minimal, and probably won't support the cost of the litigation. In addition, the fair use analysis may be closer than you suggest because, while the purpose of the copying is commercial, it does not have a significant impact on the value of the copyright holder's section 106 rights.

John Noble
<jnoble[_at_]dgs.dgsys.com> Received on Thu Oct 26 1995 - 12:14:28 GMT