I learned from the Salinger suit that writers do own their words; recipient owns the letters they got them on. So, VF is in legal trouble.

Fri Nov 29 23:34:23 UTC 2024

Hi Mark, I believe that in copyright law, the term “work” applies generally to the different forms of expression to which copyright applies, and so has a broader meaning than I think you have in mind. See, for example, this discussion from the USPTO’s page (https://www.uspto.gov/ip-policy/copyright-policy/copyright-basics) under the heading “What is a copyright?”:

> A copyright is a federally granted property right that protects rights holders from certain unauthorized uses of their original works of authorship. The subject matter eligible for protection is set forth in the Copyright Act of 1976. Copyrightable works include literary, dramatic, musical, and artistic works such as books, plays, music, lyrics, paintings, sculptures, video games, movies, sound recordings, and software.
> 
> To be eligible for protection under the Copyright Act, a work must be fixed in a “tangible medium of expression.” A literary work, for example, can be fixed in a book or on the back of an envelope. A musical work can be fixed in sheet music, on tape, or in a digital file. A work of visual art can be fixed on a canvas, and a sculptural work in stone.
> 
> Copyright protection does not extend to ideas, procedures, processes, systems, methods of operation, concepts, principles, or discoveries. Copyright protects only the expression of an idea, not the idea itself. This principle, sometimes called the “idea-expression dichotomy,” ensures that protection will extend only to the original elements that the author has contributed to a work, not to the work’s underlying ideas, which remain freely available to the public.
> 
> Under the Copyright Act, a copyright owner has the exclusive right to reproduce, adapt, distribute, publicly perform, and publicly display the work (or to authorize others to do so). In the case of sound recordings, the copyright owner has the right to perform the work publicly by means of a digital audio transmission. These exclusive rights are freely transferable, and may be licensed, sold, donated to charity, or bequeathed to heirs.
> 

It would not make sense in copyright law to speak of something that is not a “work” being protected by copyright. If something is not a “work” then you never get to the question of fair use, which is an exception to copyright protections.

The USPTO also says

> [S]ection 107 of the Copyright Act codifies the doctrine of fair use, which permits certain other uses that are not covered by a specific statutory exception. While the doctrine is flexible and case-specific, section 107 sets forth an illustrative list of the types of uses that generally are considered appropriate for a finding of fair use. These include uses for purposes of criticism, comment, news reporting, teaching, scholarship and research. In determining whether a particular use is a fair use, section 107 specifies four factors that courts must consider: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.

The point of the 1992 amendment to Section 107 that I mentioned in my email below appears to be that Congress was, essentially, limiting the precedential effect of the Salinger decision by changing the underlying statute it was interpreting. Maybe I’m wrong, but I’d want to see legal authority more recent than the 1992 amendment to convince me of that. And the way that the Esquire article used the unpublished letters does seem like fair use, in that the article quotes them to better understand McCarthy’s published fiction, quotes fairly limited passages from scores of letters, and would not seem to affect the market for them or their value.   

Again, while I am a lawyer, I do not do copyright law, and maybe I’m wrong.

> On Nov 29, 2024, at 1:55 PM, Mark Kohut <mark.kohut at gmail.com> wrote:
> 
> Letters to a person are seldom "unpublished work".....they are personal letters. 
> 
> In May 1986 Salinger learned that the British writer Ian Hamilton <https://en.wikipedia.org/wiki/Ian_Hamilton_(critic)> intended to publish a biography that made extensive use of letters Salinger had written to other authors and friends. Salinger sued to stop the book's publication and in Salinger v. Random House <https://en.wikipedia.org/wiki/Salinger_v._Random_House>, the court ruled that Hamilton's extensive use of the letters, including quotation and paraphrasing, was not acceptable since the author's right to control publication overrode the right of fair use.[121 <https://en.wikipedia.org/wiki/J._D._Salinger#cite_note-lubas-122>
> 
> On Fri, Nov 29, 2024 at 4:40 PM Robert Mahnke <rpmahnke at gmail.com <mailto:rpmahnke at gmail.com>> wrote:
>> Not the sort of law that I do, but the Wikipedia page about the Salinger case says, in part:
>> 
>>> [I]n response to concerns about the implications of this case on scholarship, Congress amended the Copyright Act in 1992 to explicitly allow for fair use in copying unpublished works, adding to 17 U.S.C. 107 the line, "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."
>> 
>> 
>>> On Nov 29, 2024, at 1:18 PM, Mark Kohut <mark.kohut at gmail.com <mailto:mark.kohut at gmail.com>> wrote:
>>> 
>>> That will probably be the argument but it didn’t work for the Salinger biographer. Theses are personal letters not bits from a book for a review or teaching. 
>>> 
>>> On Fri, Nov 29, 2024 at 3:42 PM Robert Mahnke <rpmahnke at gmail.com <mailto:rpmahnke at gmail.com>> wrote:
>>>> Wouldn’t that be considered fair use?
>>>> 
>>>> > On Nov 29, 2024, at 10:03 AM, Mark Kohut <mark.kohut at gmail.com <mailto:mark.kohut at gmail.com>> wrote:
>>>> > 
>>>> > https://x.com/AmericanGwyn/status/1862546724369129799
>>>> > --
>>>> > Pynchon-L: https://waste.org/mailman/listinfo/pynchon-l
>>>> 
>>>> --
>>>> Pynchon-L: https://waste.org/mailman/listinfo/pynchon-l
>> 