Diaries, poems, photos, and letters can be a writer’s treasure trove of material, often obtained when a relative or friend dies. The general belief is that physical possession of these valuable documents means you own the rights to publish them. It does not. Under most circumstances (there are a few exceptions, see below), the copyright in the creative work, which is a property interest, passes to the deceased’s estate. Even then, determining the valid owner of the copyright-protected work can be somewhat complicated.
The first question is: did the deceased have a will, or in legal terms, did the deceased die testate? If so, the property interest in the copyright-protected document passes to the beneficiaries of the will. If the deceased died intestate, i.e., without a will, then the property interest in the copyright passes to the heirs. Determining the distribution of the estate requires a formal court proceeding to appoint an executor of the estate who can then dispense of the property as determined by the local intestate statutes where the person died.
The next question you should ask is: has the copyright expired. There are time limits for copyright protection. The topic is somewhat complicated due to law changes over the years. As a general rule, for works created after January 1, 1978, copyright protection lasts for the author’s life plus an additional 70 years. For works published before 1978, the term will vary depending on several factors. See this link for more on copyright limits and public domain.
If you are the sole heir to the deceased estate, then, absent a will, ownership of the copyright-protected material will have passed to you. If there are multiple heirs, then the copyright is jointly owned by the heirs. Permission under this circumstance is needed. Also, permission is required if the copyright-protected material has passed to a third person.
If you decide to exploit the creative work commercially, say publishing it in your book, without first determining who owns the copyright and, if necessary, getting permission, the actual copyright owners may have a claim for all or a portion of the income generated by the publication. Also, suppose the creative materials divulge personal or private information about living individuals, which journals and diaries often due. In that case, the living person may have a basis for violating privacy rights or defamation (living or deceased individuals).
As I mentioned above, there are exceptions.
- You don’t need permission if the copyright-protected material is in the public domain.
- Suppose the copyright-protected material is created by a federal employee within the scope of their job. In that case, the material is in the public domain and can be quoted from and published. This rule may not apply if the person creating the material was a state employee. So, check the state laws if that’s the case for your situation. If the material was made during the federal employees’ private life, this exception does not apply. Copyright protection exists. You can’t use it without permission.
- You might be able to quote excerpts or paraphrase portions of the copyright-protected material 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 definite rules regarding how much you can use from written material. A letter or poem, for example, 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 more substantial fair use grounds. If the purpose is commercial, then quoting anything from a letter is less like to be fair. See this article for more info on what fair use permits.
Suppose fair use or none of the exceptions above apply to your specific case. You can still summarize the facts within the copyright-protected material in your own words if you avoid close paraphrasing. Why? Because copyright protects expression, not facts and ideas.
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.