Re: Copyright in Personal Letters

From: Laura N. Gasaway <unclng[_at_]email.unc.edu>
Date: Thu, 7 Aug 1997 09:42:03 -0400 (Eastern Daylight Time)

On Tue, 5 Aug 1997, Terry Carroll <carroll[_at_]tjc.com> wrote:
>
> 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 Act basically says that fair use of unpublished works is to be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 work is unpublished, any use of the work is per se an unfair use.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 mind, irrational) principle that an unpublished work can never be fairly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.

     Well, in looking at the legislative history, I think we are both right. The stated purpose of H.R. 4412 was to "ensure that the courts do not erect a per se rule barring any fair use of unpublished works."

     The House Report goes on to say that each claim of fair use of an unpublished work should be based on an analysis of the four fair use factors. The report then cites Salinger for concluding that Harper & Row says the scope of fair use is narrower with respect to unpublished work and that "scope" could mean that fair use will be in effect narrower for unpublished works.

     The House Report then agrees with the Copyright Office that the 2d Circuit in Salinger "went astray in its treatment of the unpublished nature of the work as leading to a diminished likelihood that the fair use defense, as a whole, will in every case bnot be available. Then the report states that for purposes of the second factor, nature of the work, the unpublished nature of the work is akey though not necessarily determinative factor tending to negate a fair use defense.

     It also cites New Era v. Henry Holt and Wright v. Warner Books and says that Warner went a long way to ameliorate the holding in Salinger but did not go far enough in undoing the Salinger statement that unpublished works "normally enjoy complete protection against copying any protected expression."

     This is why I am not sure Salinger continues to be good law.

Lolly

%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%

Laura N. Gasaway			Phone:  919-962-1049
Director of the Law Library &
	Professor of Law		Fax:	919-962-1193
CB # 3385
University of North Carolina		e-mail: laura_gasaway[_at_]unc.edu

Chapel Hill, NC 27599 Received on Thu Aug 07 1997 - 13:56:50 GMT