Copyright, Archives, and Unpublished Materials
• Unpublished works can include manuscripts, photographs, computer programs, e-mails, business memos, and a wide variety of materials.
• Congress eliminated the perpetual common law copyright protection that previously applied, and unpublished works are today subject to federal copyright protection.
• In general, the duration of protection for unpublished works is the same as for other works, meaning that the copyrights in unpublished works from long ago may have expired.
• Fair use can apply to unpublished works, but it usually applies narrowly as compared to other types of works.
• Some other provisions of the U.S. Copyright Act, notably Section 108, include distinctive rules applicable to unpublished works.
UNPUBLISHED WORKS CAN range from historical manuscripts to modern research findings and computer programming. In many instances, copyright law applies a distinctive set of rules to such works, often resulting in tighter controls on their use. Sometimes the reasons for the law are built on sound policies of confidentiality or privacy. The author of private correspondence and journals may have extraordinary need for greater control over writings that disclose confidences. Memoranda in business files may contain trade secrets. Many computer programs may be selectively utilized or licensed, never meant for wide distribution or publication. Other unpublished works are simply not quite ready for full disclosure. They may be drafts of articles or raw film footage not yet refined into the final published version. Special protection for these works is sometimes easy to justify.
The history of copyright law includes important precedent for distinctive treatment of unpublished materials. Today, the rights of copyright owners include rights of reproduction and more. Some early cases often referenced a “right of publication” or a “right of first publication.”1 Control over when a work would reach the market and be openly disclosed was generally safeguarded for the author’s benefit. If the author clearly meant for the drafts to reach a limited group of readers, a court will likely apply a tight construction of fair use.
The logic of these developments is fairly simple. Concerns about confidentiality often lead to greater protection and hence usually a more constrained allowance of fair use or other public rights of use. Whether that explanation is valid or not, it has shaped copyright law in several respects, generally resulting in greater protection for unpublished works. This chapter will focus on a few aspects of current copyright law specifically applicable to unpublished works, and that are of particular importance to librarians, educators, and researchers.
Duration of Protection
Before 1978, unpublished works were not protected under federal copyright law at all. The application of federal statutory copyright protection began to apply only upon publication of the book, music, or other work. If the work was published with a proper copyright notice, then statutory protection would apply for a period of years. If the publication lacked the requisite notice, the work immediately entered the public domain.
Up to the time of publication, however, the work enjoyed something known as common law copyright protection. This protection was not part of federal law, but the rights were instead generally recognized and enforced under state law. Common law protection applied automatically, and one of its most significant traits was that it lasted indefinitely. More bluntly, it would last in perpetuity—forever—as long as the work remained unpublished. The author might have been dead for centuries, but the copyright lived on.
Common law copyright posed serious challenges for anyone working with unpublished materials, such as the biographer needing to quote from letters and diaries or wanting to reprint a family snapshot. The legal protection was strong, and even letters from centuries ago still had valid copyrights.
With the full revision of the U.S. Copyright Act, effective January 1, 1978, Congress brought an end to much of the problem. Congress abolished common law copyright and brought all eligible works—published or not—under federal copyright protection.2 Moreover, Congress eliminated the perpetual protection and applied the basic terms of protection to new and old works that are unpublished.3 For the first time in American history, the copyrights to unpublished works could now expire. For the first time, researchers could anticipate that unpublished materials—including diaries, letters, survey responses, e-mail correspondence, manuscripts, photographs, art, or software—would eventually enter the public domain and become available for unrestricted use.
Still, Congress did not make the law easy. To understand the duration rules for unpublished works, we still need to separate works created before and after the beginning of 1978. For unpublished works created since that date, we can apply the general rules of duration:
• For works created by individual authors, the copyright lasts for the life of the author, plus seventy years.4
• In the case of works made for hire, the duration for unpublished works is generally 120 years from the date of creation. If the work is eventually published, the copyright duration will be the lesser of either 120 years from creation or ninety-five years from publication.5
To determine the copyright duration of an archival photograph (here the author’s grandparents, Reuben and Amanda Anderson), one needs to investigate much about its creation and possible publication.
What about unpublished works from before 1978? Even works from the earliest years of American history? Congress laid down the general proposition that the general, current duration rules apply to those materials as well, although Congress postponed application of those rules until January 1, 2003.6 As of that date, a wealth of unpublished materials entered the public domain for the first time. For example:
• Your archive may include letters and diaries written by Thomas Jefferson (died in 1826) or Frederick Douglass (died in 1895) or Louisa May Alcott (died in 1888). Because the writers died more than seventy years ago, the copyright for their unpublished works has lapsed. You may reprint the materials in full and upload them into a digital library without copyright restriction.
• You are writing the history of Mega Corporation, and you have files of memos written by company founders in the nineteenth century. If the writings are for hire and are more than 120 years old, they are no longer under copyright protection.
• You are planning to publish a book about the Civil War and want to include a set of photographs from the era, but you cannot identify the photographer. If the work is indeed anonymous, the copyright expired after 120 years.
Again, however, Congress did not make the law quite so simple. One more important twist in this law remains. Congress postponed the new law—as applied to unpublished materials—until 2003 in order to give rightful copyright owners an opportunity to find and benefit from copyright protection. Copyright owners by that time were typically family members or others who received the copyright through transfer or inheritance. In the years leading to 2003, Congress offered an important inducement to owners: find and publish the works before 2003, make them available to the public, and the law will reward you with an additional forty-five years of legal rights.7
Consider this actual example: Samuel Clemens, more famous as Mark Twain, died in 1910. A previously unpublished chapter of his novel Huckleberry Finn was discovered in the 1990s. A new edition of Huckleberry Finn was published in 2001 with the “missing” chapter integrated into the full book.8 The original portions, published in 1884, entered the public domain decades earlier and remain there. The “unpublished” chapter, however, might have expired in 1980, seventy years after Twain’s demise. But that rule did not take effect until 2003, and because the chapter was published before the end 2002, the law gave it an additional forty-five years of copyright protection, to the end of 2047.
Researchers accordingly must be watchful of two common possibilities. First, you might find a manuscript or other “unpublished” work from the past, but before you can conclude that it is in the public domain, you need to research whether in fact it might have been published in the meantime. Second, you may find a published work, such as a novel from the distant past, but some pieces of it may have been added more recently and enjoy protection under copyright law.
Fair Use of Unpublished Works
A series of court rulings through the last two decades have established a relatively narrow application of fair use to unpublished works. The issue has been of enormous importance to the software industry and other parties, whose works are often kept unpublished and are worth enormous amounts of money. Yet most judicial decisions have been about the use of letters, diaries, and other resources central to the writing of history and biography. When courts ruled in the late 1980s that biographers may not be within fair use when making customary quotations from letters written by J. D. Salinger and L. Ron Hubbard, researchers expressed alarm.9
Congress responded in 1992 by adding this sentence to the fair use statute: “The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.”10 Congress was striving to dissuade the courts from making a complete bar on fair use for unpublished works, and the effort appeared to work. Subsequent cases have allowed authors to make limited quotations from the journal of Richard Wright and the manuscripts of Marjorie Kinnan Rawlins.11
The tomb of Richard Wright, Père Lachaise Cemetery in Paris
While fair use has found new meaning in the context of unpublished works, that meaning remains somewhat circumscribed. In all of the cases, courts have tipped the “nature” factor firmly against a finding of fair use, reasoning that the unpublished nature of the materials means that they merit greater protection. Courts have built these principles on a presumption that letters, diaries, and other manuscripts may include private information, and stronger protection allows the copyright owner to choose whether, when, and how to make the works publicly available.
The recent cases were provoked by a decision from the U.S. Supreme Court involving the use of quotations from the manuscript to President Gerald Ford’s memoirs. The Court ruled that the quotations were not within the limits of fair use, in large part because the memoirs were not yet published. The Court articulated a “right of first publication” and held that fair use applies narrowly when it could effectively erode the author’s ability to choose when to publish, or even whether to publish the materials at all.12 Also highly influential to the Court was the fact that the publisher intended to release the work in the near future, and unapproved publication directly affected the market for licensing excerpts to a popular magazine.
The following cases illustrate the recent evolution of the fair use law for unpublished works.
Salinger v. Random House, Inc., 811 F.2d 90 (2d Cir. 1987).
Random House was preparing to publish a biography of the famous and reclusive author J. D. Salinger. The book was to include quotations from private correspondence available to researchers in various manuscript collections. Salinger wrote the letters, and recipients had donated the materials to libraries at Harvard, Princeton, and other universities. The lower court had ruled that the limited quotations and paraphrases were within fair use, but the Court of Appeals disagreed, circumscribing sharply the application of fair use to unpublished materials. The court seemed particularly moved by the apparent personal or confidential nature of the letters, as well as their literary qualities. These considerations affected all four of the factors.
Purpose: The court agreed that the purpose of the use was criticism, scholarship, or research. Any of these purposes would favor a finding of fair use, even in the context of a book that will likely be published and sold for commercial gain. On the other hand, the court gave no special leniency for biographers who may customarily depend on quoting from private letters to tell an important story.
Nature: On this factor, the court succinctly and firmly leaned against fair use for unpublished materials.
Amount: The court also held the biographer to a highly restrictive standard, finding that many of the quotations used more of Salinger’s expression than was “necessary to disseminate the facts.” The court appeared to be deeply influenced by the literary qualities of Salinger’s letters, finding infringements even when the quotations were limited to just phrases and even paraphrasing of the originals.
Effect: The court relied on testimony about the monetary value of the letters, or the possibility that Salinger or his successors may choose to publish them in the future, to conclude that quotations in a published biography could harm those speculative markets.
Sundeman v. The Seajay Society, Inc., 142 F.3d 194 (4th Cir. 1998).
The Salinger case suggested that the unpublished nature of the work could greatly influence the analysis of all the fair use factors. Researchers began to see in Salinger nearly a total elimination of fair use for unpublished works. The Sundeman case, however, reveals that much had changed in the law by the late 1990s. Today, this case is an important reminder that reasonable, limited, scholarly uses of unpublished materials may well be within fair use.
The Sundeman decision involved the use of significant quotations from a manuscript by the author Marjorie Kinnan Rawlins. A researcher at a nonprofit foundation selected quotations from the unpublished manuscript and included those quotations in an analytical presentation delivered to a scholarly society. Turning to the four factors, the court ruled that the researcher was acting within fair use.
Purpose: Her use was scholarly and transformative, and provided criticism and comment on the original manuscript. All these purposes worked in favor of fair use. The court especially noted that moving the excerpts from the original novel to the context of scholarly criticism was a transformative use.
Nature: The court relied on a long series of cases to resolve that the unpublished nature of the work “militates against” fair use. On the other hand, the court pointed to the new language in the fair use statute, and emphasized that the use of unpublished works may still be within the law.
Amount: The amount used was consistent with the purpose of scholarly criticism and commentary, and the use did not take “the heart of the work,” as has been important in other cases. The court was also not concerned that the amount copied was between 4 and 6 percent of the original work.
Effect: The court found no evidence that the presentation displaced any market for publishing the original work, and a presentation at a scholarly conference may in fact have increased demand for the full work.
The Current Trend
These cases reflect the trend away from an apparent per se bar on fair use for unpublished works. When Congress added the language about unpublished works, it was striving to eliminate any notion of a complete bar on fair use. In other rulings, courts have found fair use when a biographer quoted from the personal journals of Richard Wright, and when an author of a critical study printed excerpts from rap lyrics written by Eminem before he found fame.13 Fair use does apply to unpublished works today, and it often will allow brief or moderate quotations, as are customary for research in history, biography, and many other disciplines.
Library Preservation and Other Statutory Exceptions
Recall from chapter 7 that the U.S. Copyright Act includes numerous statutory exceptions to the rights of owners. A few of them have some implications for the use of unpublished works. Most notable is Section 108, which allows most libraries to make limited copies of copyrighted works for specific purposes (see chapter 13 of this book). One of those purposes is preservation programs, and here the statute outlines a distinctive application to preservation copies of unpublished materials. The rules are not necessarily more rigorous than the rules applicable to published works. They are just different.
When librarians make preservation copies of published works, they must search the market for a replacement before making a new copy. The rule is logical: as long as the work is still published, libraries should be ready to buy replacements rather than make their own. By contrast, if the work is unpublished, no such market exists. The unpublished work, however, may be personal or confidential. Consequently, the library may make the copy, but usually only to retain it in the library for research and study—and not for wide dissemination.
Promoting Progress
This chapter is an overview of discrete aspects of copyright law applicable to unpublished materials. These examples provide important demonstrations of the underlying principles and functions of copyright. Copyright law serves two pragmatic purposes: to protect creative works and to facilitate beneficial uses of those works by the public. Those purposes are often in conflict with each other. Through the last two centuries, Congress has steadily reevaluated the tension and has struck new legal articulations of a balance.
When applied to unpublished materials, the law sometimes establishes a distinct balance, reflecting the particular interests of copyright owners and the singular importance of unpublished materials for research, education, and other pursuits. When Congress eliminated perpetual copyright protection for manuscripts, or applied a limited fair use to personal diaries, it strove to achieve the overarching goal of copyright law—to promote the progress of science and learning. In that spirit, Congress has moved away from rigid and absolute bars on uses of unpublished works. Instead, the law has migrated toward a bit of flexibility and ultimately a fresh rethinking and rebalancing of owners’ and users’ rights.
Notes
1. Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985); Estate of Martin Luther King, Jr., Inc. v. CBS, Inc., 194 F.3d 1211 (11th Cir. 1999).
2. U.S. Copyright Act, 17 U.S.C. § 301(a).
3. U.S. Copyright Act, 17 U.S.C. §§ 302–304.
4. In the case of works created by joint authors, the copyright lasts through the life of the last of the authors to die, plus seventy more years. U.S. Copyright Act, 17 U.S.C. § 302.
5. U.S. Copyright Act, 17 U.S.C. § 302(c).
6. U.S. Copyright Act, 17 U.S.C. § 303.
7. U.S. Copyright Act, 17 U.S.C. § 303.
8. Mark Twain, Adventures of Huckleberry Finn, ed. Victor Fisher and Lin Salamo, with Walter Blair, illus. E. W. Kemble and John Harley (Berkeley: University of California Press, 2001).
9. Salinger v. Random House, Inc., 811 F.2d 90 (2d Cir. 1987); New Era Publications International v. Henry Holt & Co., Inc., 695 F.Supp. 1493 (S.D.N.Y. 1988), aff’d by 873 F.2d 576 (2d Cir. 1989).
10. Fair Use and Unpublished Works Act, Public Law 102-492, U.S. Statutes at Large 106 (1992): 3145, codified at 17 U.S.C. § 107.
11. Wright v. Warner Books, Inc., 953 F.2d 731 (2d Cir. 1991); Sundeman v. The Seajay Society, Inc., 142 F.3d 194 (4th Cir. 1998).
12. Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985).
13. Wright v. Warner Books, Inc., 953 F.2d 731 (2d Cir. 1991); Shady Records, Inc. v. Source Enterprises, Inc., 371 F.Supp.2d 394 (S.D.N.Y. 2005).