Re: Copyright in Personal Letters

On Mon, 4 Aug 1997, Laura N. Gasaway <unclng[_at_]email.unc.edu> wrote:
>
> But the 1992 amendment to section 107 of the Copyright
> Act basically says that fair use of unpublished works is to be
> judged just as if it were a published work.

That's not how I read it. Here's my view: whether a work is published has long been used by courts in determining whether the factor "the nature of the copyrighted work" favored fair use. After the Harper & Row v. Nation case, which used the publication status as part of the fair use determination, a few courts took this to the extreme, holding that, if a work is unpublished, any use of the work is per se an unfair use.

My view of the 1992 amendment is that it simply eliminated this in my mind, irrational) principle that an unpublished work can never be fairly used, and restored the original priciple that the publication status may be a factor, but it is only one factor.

> So, it is unclear whether Salinger is still good law.

I heven't read the Salinger case in ages, but I'd look to the text of the opinion to see if it relied on that per se distinction. If not, I'd consider it still good law.

--
Terry Carroll       | "Mars ain't the kind of place to raise your kids.
Santa Clara, CA     | In fact, it's cold as hell."  - Bernie Taupin, 1972
carroll[_at_]tjc.com     | "Air temperatures ... show an afternoon high near +9
Modell delenda est  | degrees Fahrenheit." - Mars Pathfinder Mission, 1997