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 23:39:35 UTC 2024

OK....I'm no lawyer but I can follow the basics you outline here
....what I don't get then is what is the nature of the "work"?......

but we will see in time, I guess...

On Fri, Nov 29, 2024 at 6:34 PM Robert Mahnke <rpmahnke at gmail.com> wrote:

> 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> 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> 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> wrote:
>>
>>> Wouldn’t that be considered fair use?
>>>
>>> > On Nov 29, 2024, at 10:03 AM, Mark Kohut <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
>>>
>>
>>
>