4
fair use litigation will always be piecemeal: no legislative solution can answer in advance the outcome of a given dispute.
Fair Use of Unpublished Works
H.R. 4412 was introduced as a result of concerns[1] by some biographers, historians, and publishers that their ability to use unpublished primary source material such as copyrighted letters and diaries had been limited to two decisions from the United States Court of Appeals for the Second Circuit, Salinger v. Random House, Inc.,[2] and New Era Publications, International ApS v. Henry Holt & Company.[3] In order to understand these complaints, a brief review of the fair use doctrine as applied to such material is required.
Before the 1976 Copyright Act, copyright law in the United States was divided between federal and state protection. Published works were protected by the federal copyright law, while unpublished works were generally protected by state common law.[4] The common law, going back to late eighteenth century English cases, had been strict in prohibiting fair use of unpublished works under the theory that the author should decide when and in what form his or her work should first reach the public.[5]
The 1976 Copyright Act extended protection to all copyrightable published and unpublished works, preempting equivalent state protection.[6] In codifying fair use in Section 107 of title 17, United States Code, however, the statute did not draw a distinction between published and unpublished works. The report of this Committee accompanying the Act did, though, state an intention not to “change, narrow, or enlarge [the present judicial doctrine of fair use] in any way.”[7] The only direct discussion of unpublished works occurs in the 1975 Senate report: “The applicability of the fair use doctrine to unpublished works is narrowly limited, since although the work is unavailable, this is the result of a deliberate decision on the part of the copyright owner. Under ordinary cir-
- ↑ See, e.g., written statement of author J. Anthony Lukas, “Fair Use and Unpublished Works: Joint Hearing Before the Subcomm. on Patents, Copyrights and Trademarks of the Senate Comm. on Patents, Copyrights and Trademarks of the Senate Comm. on the Judiciary and the Subcomm. on Courts, Intellectual Property, and the Administration of Justice,” 101st Cong., 2d Sess. 176 (1990) (if the Salinger and New Era rulings are “permitted to stand as the guiding precedent in this area, [we] will increasingly find fewer works of compelling history and biography available on * * * bookshelves and eventually in * * * libraries”); statement of author Taylor Branch, id. at 160 (“The quotation, in modest and appropriate amounts, of source materials is crucial to providing intimacy, immediacy, ambience, and re-creation of motives and values that history requires and readers need”).
- ↑ 650 F. Supp. 413 (S.D.N.Y. 1986), rev’d, 811 F.2d 90 (2d Cir.), cert. denied, 484 U.S. 890 (1987).
- ↑ 684 F. Supp. 808 (S.D.N.Y. 1988); 695 F. Supp. 1493 (S.D.N.Y. 1988), aff’d on other grounds, 873 F.2d 576 (2d Cir.), petition for rehearing en banc denied, 884 F.2d 659 (2d Cir. 1989), cert. denied, 110 S.Ct. 1168 (1990).
- ↑ An exception was made in the federal statute for works such as motion pictures and speeches that were not intended for sale in copies. See 17 U.S.C. § 12 (1909).
- ↑ See written testimony of the Register of Copyrights, “Fair Use of Unpublished Works: Hearing on Title I of H.R. 2372 Before the Subcomm. on Intellectual Property and Judicial Administration of the House Comm. on the Judiciary,” 102d Cong., 1st Sess. (June 6, 1991); “Fair Use and Unpublished Works: Joint Hearing on S. 2370 and H.R. 4263 Before the Subcomm. on Patents, Copyrights and Trademarks of the Senate Comm. on the Judiciary and the Subcomm. on Courts, Intellectual Property, and the Administration of Justice of the House Comm. on the Judiciary,” 101st Cong., 2d Sess. 28–38 (1990).
- ↑ 17 U.S.C. §301(a) (1978).
- ↑ H. Rept. No. 94–1476, 94th Cong., 2d Sess. 66 (1976).
