The COVID-19 quarantine is a great opportunity to clean out closets and attics. For writers, rummaging through yesterdays can generate new ideas for creative projects—like using that stack of steamy love letters from an ex-boyfriend. Or maybe a few nasty grams from an irate neighbor over the pruning of a tree.
Whatever the source, when it comes to letters, diaries, journals, and emails (basically any unpublished works), you might like to know that just because someone sent you a letter, or gave you someone’s unpublished writings, you don’t own the copyright. Under most circumstances (there are a few exceptions, see below), the copyright in the letter is owned by the person who wrote it.
As the recipient of the letter, what you own is the physical copy—i.e. the paper and ink on it. This means you can show that letter to people, give it away, donate it, even sell the physical copy. What you can’t do is reproduce, publish, or create a derivative work from the letter. Those rights remain with the copyright holder, i.e the author of the letter, unless you have permission. If the person who wrote the letter is dead, then the copyright remains with his heirs and you still need permission
As I mentioned above, there are exceptions.
- If the letter is written by a federal employee within the scope of their job, then the letter is in the public domain and can be quoted from and published. This rule may not apply if the person writing the letter was a State employee. So, check the state laws if that’s the case for your situation. If the letter was written in the federal employees’ private life, then this exception does not apply. Copyright protection exists. You can’t use it without permission.
- If the letter is written by an employee as part of her job, then the copyright is owned by the employer. You still can’t use it without permission, but in this case, you’d need permission from the employer, not the person who wrote the letter.
- You might be able to quote excerpts or paraphrase portion of a letter as long as the use conforms to the fair use doctrine. Fair use is a subjective four-step analysis that focuses primarily on the purpose of the use and the financial consequences to the person who owns the copyright. There are no solid rules when it comes to how much you can use from a letter. A letter is usually short, so the number of words you could safely quote is smaller than what you might quote from something bigger, like a book. You could analyze, comment and/or criticize the quoted material but even then, your use depends on the nature of your project. If the purpose is noncommercial you are on stronger fair use grounds. If the purpose is commercials, then quoting anything from a letter is less like to be fair. Let’s look at fair use in more detail.
What does fair use permit?
The fair use privilege allows someone to use copyright-protected work without permission. As I noted above, the fair use exception depends on many factors making it difficult to provide general rules for how to apply fair use. Application of the rule tends to be fact-specific and requires a case-by-case analysis. If I were going to give you one general rule, it would be that if you use copyright-protected work for your personal use, fair use is more likely to apply than if you use it for commercial purposes.
Here are the four factors to consider when applying the fair use rule:
- The purpose and character of the use;
- The nature of the copyright-protected work;
- The amount of and substantiality of the portion used; and
- The effect of the use upon the market for the copyright-protected work.
These factors are not equally important, nor do the courts consider all factors when making a fair use determination. Again, the application of the rule is on a case-by-case basis. But you should at least review all four factors when making your assessment.
For example, if you want to publish a personal correspondence sent to you or given to you, and you do not own the copyright to the work or have permission to use the letters, then determine if fair use might apply.
- What is the purpose and character of the use? Is it for criticism, comment, news reporting, teaching, or research? Is the use for commercial or noncommercial purposes? Novels or screenplays are commercial endeavors. Use on a blog may or may not be for commercial purposes. Using a letter for criticism or teaching tends to fall within the fair use privilege.
- What is the nature of the copyright-protected work? Highly creative work tends to be subject to strong copyright protection. Less creative work tends to be subject to weaker copyright protection. Facts cannot be copyright protected, which can provide you another option (see below).
- How much of the letter would be used? Because the exchanges in letters are relatively short, most likely you would use a substantial amount of the material. Unfortunately, there are not clear assurances on how much is appropriate, like only 10% or only one line. One rule of thumb is the shorter the work being copied, then the amount that can be used under fair use is smaller than the amount that can be used from a longer work. For example, quoting a sentence from a letter versus a passage in a book. If anything, use sparingly from short works.
- How has your use affected the market place on the copyright-protected work? I would venture to say that using a personal letter in most cases would probably not cause the other party to lose money. But then again, it depends on who wrote the letters. Take the lawsuits over the unauthorized use of J.D. Salinger’s letters. An unauthorized biography of Salinger was enjoined after the author included long verbatim sections of Salinger’s unpublished letters without Salinger’s permission.
In practice, remember that fair use is determined on a case-by-case basis and depends heavily on the facts. It should also be noted that fair use is a defense to copyright infringement, which is only useful if you are sued. In reality, the words of most people are not valuable enough to warrant costly litigation. That said, even though the probability is low that someone will sue for copyright infringement over something like a letter, asking permission seems like an ethical way to proceed before using it.
If fair use or none of the exceptions above apply to your specific case, you can still summarize the facts within the letter in your own words if you avoid close paraphrasing. Why? Because copyright protects expression, not facts and ideas.
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Legal Disclaimer: This information is provided for educational purposes only. Consult a qualified lawyer in your jurisdiction for all legal opinions for your specific situation.