Are personal messages protected by copyright?

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infringement frequently occur when the author of an unauthorized biography makes use of the subject's published or unpublished letters and papers or possibly from oral conversations the author may have had with the subject.

In Salinger v. Random House, Inc., the author's use of extensive quotations from unpublished letters written by J.D. Salinger, the subject of the biography, without Salinger's permission was deemed to be copyright infringement. Under copyright law the writer of unpublished letters has the right to control the first publication of those letters.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decision as well as other copyright infringement decisions based upon what was believed to be excessive protection for unpublished works, resulted in Congress amending the Copyright Act. U.S. copyright law now provides that if a work is unpublished and it is used without permission of its author then the fact that the work was unpublished by itself would not be sufficient to constitute copyright infringement.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v. Warner Books it was held that when a work is one of "criticism, scholarship or research," that quotations from unpublished personal letters and journals might constitute fair use.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 In Hemmingway's case, his copyright to his personal conversations was superseded on the basis of Fair Use.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.

========================&========================

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

What the hell...

No. You cannot copyright every single word you ever utter. Sorry. We're not going to be hitting ascorbic's with a class action lawsuit for copyright infringement.

This is quite separate from whether or not it's nice to post private /msgs without permission. Under most circumstances, probably not. However, it is insane to invoke copyright law to defend this.

The cases mentioned above in defense of the copyrightability of private /msgs refer to letters, which are much more substantial works than the 512 character limit on /msgs. In the case of conversation with Hemingway, which is much closer to /msgs than to a possible original creative work like a letter, the copyrightability of conversations was denied. A conversation would need to highlight much originality and convince a judge of being a unique work of authorship which could give the author a monetary advantage if copyrighted. The purpose of copyright is not to enforce confidentiality, but to allow authors to profit from their work which in turn should benefit society by fostering the creation of original works.

Despite the primitiveness of our /msg system, what has been posted in this case is more akin to a conversation than private correspondence. Here is another case in the US, which like Hemingway's, copyrightability of a conversation was denied.

By all means, nuke a writeup that makes a spat public if you so wish. There are reasons to honour a noder's request to not make a conversation public. But please, don't do so invoking copyright law. Copyright law gets abused enough as it is, so don't spread further confusion on the topic.

Aside from copyright (and abuses and highly dubious interpretations of it), some consideration in cases of this kind also needs to be given to privacy laws and rights in various jurisdictions. I don't know much about rights to privacy in the USA where the site is based, but within countries which are signatories of the European Convention on Human Rights, this case would seem to me (IANAL) to be covered by article 8 of that convention:

Article 8 – Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Likewise, article 12 of the Universal Declaration of Human Rights reads:

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

It seems fairly clear that E2's private messages constitute a form of "correspondence", (although I am sure that dissertations could be written on the subject if one felt like it). It has certainly been applied to email, including email to closed mailing lists (the existence of an archive seems to be a key distinction between private correspondence and published matter in such cases, which may be of significance as regards the catbox, but that's a whole nother topic for later.)

Although the European convention is not the strongest piece of international law out there, it has been transposed in various ways into the national legislation of many signatory countries - here in the UK by the Human Rights Act (2000). Many countries also have separate legislation designed to protect private data stored on computers by organisations, businesses and public authorities, which might be construed to cover the private messages held on E2's servers. Although the likelihood of E2 ever being caught up in legal proceedings under any of these laws is obviously pretty small, it seems to me that their existence gives a fairly clear indication of what ought to be considered a sane approach to such matters: that, in the absence of pressing reasons in the general interest, the disclosure of the private correspondence of a third party is unacceptable, quite regardless of the existence any copyright on the text.