I was asked to research the issue of whether the recipient of a personal communication (letter, email, E2 /msg etc.) has the right to publish the received materials or if the original author of the communication retains copyrights to the content.
This is a murky area of copyright law, but I found some clarity at the Publishing Law Center website: http://www.publaw.com/biography.html
Here's their review of relevant precedents:
Copyright Infringment
Allegations involving copyright infringement frequently occur when the author of an unauthorized biography makes use of the subject's published or unpublished letters and papers or possibly from oral conversations the author may have had with the subject.
In Salinger v. Random House, Inc., the author's use of extensive quotations from unpublished letters written by J.D. Salinger, the subject of the biography, without Salinger's permission was deemed to be copyright infringement. Under copyright law the writer of unpublished letters has the right to control the first publication of those letters.
Criticism of the Salinger decision as well as other copyright infringement decisions based upon what was believed to be excessive protection for unpublished works, resulted in Congress amending the Copyright Act. U.S. copyright law now provides that if a work is unpublished and it is used without permission of its author then the fact that the work was unpublished by itself would not be sufficient to constitute copyright infringement. Subsequently, in Wright v. Warner Books it was held that when a work is one of "criticism, scholarship or research," that quotations from unpublished personal letters and journals might constitute fair use.
In Estate of Hemingway v. Random House, Inc., which concerned the publication of portions of conversations between the author and Ernest Hemingway, the court ruled that the author of Papa Hemingway did not infringe the common law copyright of these conversations by including them in a book on Hemingway's life. The court stated that even if the author used verbatim some of Hemingway's words that such use was minimal and qualified as fair use of the material.
So, Congressional meddling aside, Salinger's copyright to his personal letters was upheld. In Hemmingway's case, his copyright to his personal conversations was superseded on the basis of Fair Use.
A less authoritative but still relevant comment comes from the "10 copyright myths" page on Brad Templeton's website: http://www.templetons.com/brad/copymyths.html
"They e-mailed me a copy, so I can post it."
To have a copy is not to have the copyright. All the E-mail you write is copyrighted. However, E-mail is not, unless previously agreed, secret. So you can certainly report on what E-mail you are sent, and reveal what it says. You can even quote parts of it to demonstrate. Frankly, somebody who sues over an ordinary message would almost surely get no damages, because the message has no commercial value, but if you want to stay strictly in the law, you should ask first. On the other hand, don't go nuts if somebody posts E-mail you sent them. If it was an ordinary non-secret personal letter of minimal commercial value with no copyright notice (like 99.9% of all E-mail), you probably won't get any damages if you sue them. Note as well that, the law aside, keeping private correspondence private is a courtesy one should usually honour.
To summarize, Fair Use only has meaning when applied to a copyrighted work. Regardless of whether the Fair Use claim is ultimately upheld or not, a claim of Fair Use depends on a presumption that a copyright exists. No copyright, no Fair Use basis. By allowing the consideration of Fair Use in the example cases, the Court has implicitly acknowledged that the original author does in fact have a copyright on the material. With that copyright established, the outcome was determined on whether or not the secondary author's reliance on Fair Use was correct.
In the case of a recent dustup between two E2 authors, personal E2 msgs were quoted in a daylog and an objection has been raised by the original author of the /msgs. The original author requested that their /msg quotes be removed.
The long standing E2 copyright policy has been to proactively favor the rights of original authors when their work is quoted in E2 writeups. When an author complains that their copyrights have been violated, we remove the offending material and let the parties continue discussions between themselves if they so choose.
In the case in point, the noder might credibly assert that his daylog is a work of "criticism, scholarship or research," and that the use of the personal /msgs was legal under Fair Use. Only a court could make that judgment however. E2 doesn't have a legal staff, financial resources or inclination to ascertain or defend an author's Fair Use claim if the original author complains.
As a result, we must favor the rights of the original author of E2 /msgs and inform the noder who used the contested material that they must either remove the quotes or have their writeup removed by E2 Admin.
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Notes:
More detailed information on the Salinger decision: http://www.librarycopyright.net/wiki/index.php?title=Salinger_v.Random_House_Inc.
The astute and loquacious mkb opines as follows:
2009.07.29 at 18:39 mkb says: reposting the contents of a private msg without permission makes you a dick. i know e2 has no policy against dicks since there have been so many on staff over the years but it's a really crappy thing to do, regardless of copyright law **
Tacitly concluded and succinctly stated mkb!
And the final word goes to the estimable Wertie, a paragon of sagacity:
2009-08-04 (36 min) wertperch says re Are personal messages protected by copyright?: I've long held the personal view that, whatever the legal rights (and wrongs), if I am going to quote someone, I ask them first if it's okay. The only exception I can think of was quoting a fled noder in a daylog. His personal insults I quoted verbatim, though anonymously. It's shitty to use someone's words without permission, in my view. Well said on the legal front, though!**
**Personal communiques quoted with the explicit permission of the original authors