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Literary Property

J.d. Salinger Biography, Should Biographers Be Allowed To Quote Unpublished Literary Property?, Further Readings

The interest of an author in an original and expressive composition, that entitles the author to the exclusive use and profit thereof, with no interest vested in any other individual. The corporal property in which an intellectual production is embodied.

The concept of literature as property grew from the notion that literary works have value, and that writers deserve legal protection from unauthorized use of their work by others. Before the fifteenth century, writing generally was an activity performed for royalty and organized religion, and literature was not considered a commodity. With the invention of the printing press in the fifteenth century, along with a societal trend away from royal and religious control, literature came to be seen as an item of value that could be bought and sold.

As literature became a commodity, the law slowly moved to protect the economic interests of writers. In England the Statute of Anne was passed by Parliament in 1710 to limit the MONOPOLY of rights that publishers held over writers. Similar COPYRIGHT laws migrated to the American colonies, and comprehensive federal copyright statutes now regulate the right to own and sell literary property in the United States. In the absence of an agreement to the contrary, copyrights to literary property now vest automatically in the author as soon as the work is affixed to a tangible medium.

A precise definition of literary property is elusive. According to Eaton S. Drone, an influential nineteenth-century treatise writer, there is no literary property

in thoughts, conceptions, ideas, sentiments, etc., apart from their association…. their arrangement and combination in a definite form constitute an intellectual production, a literary composition, which has a distinct being capable of identification and separate ownership, and possessing the essential attributes of property. The property is not in the simple thoughts, ideas, etc., but in what is produced by their association. (A Treatise on the Law of Property in Intellectual Productions in Great Britain and the United States [1879]) Ultimately, lawmakers have left the job of determining what constitutes literary property to the courts, which have fashioned some general guidelines.

Not all literature qualifies as literary property. Furthermore, not all the content in a piece of literary property can receive protection from copying or use by other authors. Only the original expressive content of a piece of literature qualifies as literary property.

Mere ideas generally do not constitute literary property. For example, the idea of writing a novel set in Okefenokee Swamp, in Georgia, is not literary property. But if a person writes such a novel, the expressive content of the novel is literary property, and the author owns the rights to that property. After the novel is published and sold, another person may write a book set in Okefenokee Swamp. However, the writer of the second book may not use the original expressions, characters, and sequence of events created by the author of the first book.

No bright line distinguishes protected and unprotected characters and story lines. Rather, courts place these elements on a continuum from simple to complex. On this continuum general qualities and emotional features do not receive copyright protection. However, the more a character or story is developed, the more it comes to constitute literary property, and the more copyright protection it receives.

A determination of copyright infringement also can depend on the degree of similarity between the literary property and subsequent literary works. For example, assume that a novelist has developed a character named Hijinks, a lovable pool cleaner who moonlights as a private detective and drinks only papaya juice. This is a well-defined character, so it is the property of the novelist and no one may copy it without permission. If a second author writes and sells a book that features a private detective who cleans pools part-time, this would probably not be sufficient borrowing of an original expression to constitute copyright infringement. The second author may even give the pool-cleaning private eye a penchant for fruit juice and be safe from suit. However, if the second author's main character is a papaya-juice drinking, pool-cleaning private detective named Hijinks, a judge or jury could find infringement and award damages to the first author.

Before 1976 the term literary property was used to describe the author's state of ownership prior to publication. When an author fixed a piece of literature in a tangible medium, such as on paper or on an audiotape, the author owned the work forever and could exclude others from using it forever. Once the author published the work, the work became governed by copyright laws, which granted exclusive rights to the author for a fixed term of years.

The effect of publication was eliminated by the Copyright Act of 1976, 17 U.S.C.A. § 101 et seq. Under this act all literary property is subject to statutory provisions from the moment it is affixed in a tangible medium.

The term literary property also can describe the tangible instrument that contains the words of a literary work. Novels, short stories, poems, plays, essays, letters, lectures, sermons, and songs are some basic forms of literary property. They can be contained on any tangible medium, including audiotape, videotape, and paper.


Intellectual Property.

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