Literary Property

The protection of literary property by the federal COPYRIGHT statute is intended to create economic incentives that induce authors to create and disseminate new works. A copyright is a reward to an author for making a contribution to society. Nevertheless, the author's copyright MONOPOLY is not unlimited. The doctrine of fair use permits other authors to copy or adapt limited amounts of the copyrighted material without infringing the copyright. Fair use allows someone other than the original author to make secondary use of a copyrighted work to create a new work. The creation of the new work is also viewed as a contribution to society.

The competing interests of copyright and fair use have generated conflict over the quotation of unpublished works, primarily letters, by literary biographers. The U.S. Court of Appeals for the Second Circuit's decision in Salinger v. Random House, 811 F.2d 90 (1987), concluded that biographers cannot invoke fair use when dealing with unpublished letters. Defenders of the decision assert that it allows authors to control material they do not want published. Critics argue that this restrictive view of fair use ignores the legitimate need of biographers, historians, and other scholars to mine rich sources of unpublished material and present their findings to the public.

Defenders of Salinger and its restrictions on the quotation of unpublished works note that the purpose and character of the use of unpublished material are one factor in determining fair use. For example, though a literary biography is a work of criticism and scholarship, biographical works are generally published by commercial, for-profit businesses. If previously unpublished material were used in such a book, the publisher would promote the book by emphasizing that it contained that material.

Because biographies are written for profit, supporters of restrictions argue, biographers should not be entitled to any special consideration in determining fair use. A biographer is free to read unpublished letters and extract their factual content, but copying their author's expression of particular facts is not, and should not be, permitted. The reader of the biography will still benefit from the new factual content. Therefore, it cannot be argued that banning the quotation of unpublished work defeats the advancement of knowledge and scholarship.

Supporters of restrictions further contend that unpublished works deserve heightened protection because their authors have not yet commercially exploited them. If a biographer could quote generous selections from a series of letters, the potential market for and value of these unpublished letters would likely decrease. Even if the author asserts that he has no intention of publishing the letters, the law should preserve the author's opportunity to sell the letters if a change of mind occurs. The author's copyright must be protected to allow the author the first chance to reap an economic benefit.

Critics of Salinger and its reasoning point out that unpublished letters are usually "public," having been donated by the recipient to an academic or research library for scholarly use. It is unfair, charge the critics, to permit persons who can travel to an academic library holding the unpublished letters of a literary figure to read those letters, while denying the rest of the public the opportunity to learn more about the letter writer.

Authors who write letters know that they surrender ownership of them when they send them. Furthermore, authors do not write letters for financial gain; they write them as a simple form of communication with another individual. Critics of Salinger suggest that it should thus be fair use to quote from unpublished letters—while noting that it would not be fair use to quote from an unpublished novel or a short story without the author's permission, since such a work is generally written for economic exploitation.

Critics of the Salinger decision also argue that limiting biographers to reciting bland and brief digests of unpublished letters does not advance the public interest. They contend that the use of quotations is essential in literary biographies, where the biographer seeks to compare the public author and the private person. The comparison of expression between published works and letters can reveal consistency and contradiction. Further, the use of the subject's own thoughts and words demonstrates to the reader the complex relationship between art and life.

These critics also dismiss the conclusion that quotations from letters will diminish the market value of the letters for future publication. They point out that the publication of a literary biography generally sparks new interest in the subject and in the subject's works, including a collection of letters. Because of this response in academe and the marketplace, critics contend that the biographer actually enhances the status of the subject.

Critics also hold that the Salinger decision is motivated by privacy concerns. They note that if the author of unpublished letters does not wish to permit a biographer to investigate her life, a denial of permission to quote from the letters is an effective way of maintaining privacy. Critics are more troubled by grants of permission to quote that are accompanied by the requirement that the manuscript cannot be published without approval of the subject. Critics maintain that a subject's power to control the content of a book is antithetical to the promotion of scholarship and to the public purposes of copyright.