Foul Weather for Fair Use

By R.Z. Sheppard

It was a perfect day for bananafish, but inclement for scholars and publishers. On Jan. 29, 1987, the U.S. Court of Appeals for the Second Circuit, in New York City, ruled that the reclusive author J.D. Salinger could prevent quotation of his unpublished letters by a biographer. The decision (which the U.S. Supreme Court refused to review) went further. The biographer, Ian Hamilton, could not even describe the correspondence in such a way that it caught the spirit of Salinger's writing. Hamilton found himself, in the words of the court, with "no inherent right to copy the 'accuracy' or the 'vividness' of the letter writer's expression." Rewritten and finally published in 1988, In Search of J.D. Salinger was less a solid biography than a stylish tour de force about Hamilton's troubles with copyright law.

Similar pitfalls await other writers and publishers who help themselves to unpublished sources. This month St. Martin's Press recalled reviewers' galleys of Saul Bellow: A Biography of the Imagination after Bellow objected to portions that were partly based on his letters, including some he wrote to author Ruth Miller. "I'm having a little trouble with that one," the Nobel laureate told the Chicago Tribune, referring to the book. So is Miller, a friend of the novelist for more than 50 years.

Russell Miller (no relation) was a bit luckier. His Bare-Faced Messiah, a damning portrait of the late L. Ron Hubbard, founder of the Church of Scientology, remained in bookstores only on a technicality. Although the court agreed with the complainant, New Era Publications International, a Danish company with Scientology connections, it found that New Era had taken too long to bring suit over Miller's use of Hubbard's letters and diaries.

Copyright law permits reasonable use of limited portions of published works. But such "fair use" is severely restricted for unpublished materials. Identical bills were recently introduced in the U.S. Senate by Paul Simon of Illinois and in the House by Robert Kastenmeier of Wisconsin that would, with a simple word change, apply the fair use doctrine equally to unpublished and published works. Hearings have yet to be scheduled, but eventual passage is considered likely.

In the meantime, the fallout from Salinger and New Era has had what is usually described in literary circles as a "chilling effect." Publishers are cautious about acquiring new books that may cause long delays and legal expenses. Writers who have devoted years and heavy expenses to a project can suddenly find their efforts wasted. After two decades of research for his biography of Malcolm X, Bruce Perry, a scholar formerly on the faculty of the University of Pennsylvania, is eliminating major portions of his book. They include extensive paraphrasings from Malcolm's autobiography -- a work, incidentally, that was written by Alex Haley. Ron Nessen, former presidential press secretary to Gerald Ford, sued the Washingtonian and his ex-wife for $50 million after the magazine ran an article by the former Mrs. Nessen that contained his letters to her.

The widow of Richard Wright took action against both Warner Books and Wright biographer Margaret Walker, who used excerpts from letters sent to her by the author of Native Son. Meta Carpenter Wilde was enjoined from using all but a fraction of the billets-doux she received from William Faulkner during the 16 years of their on-again, off-again affair. The new trustee of the James Agee estate disapproved of a planned book about the film critic and poet and withdrew permission granted by her predecessor. But scholar Victor Kramer, a professor of English at Georgia State University, has filed suit against the Agee trustee.

Passage of the Kastenmeier/Simon bill would address the immediate problem but would not mean that friends or former lovers of the famous could publish their mail freely. The stationery may belong to the recipients, but the words on it do not. Courts would still have to weigh the purpose, the nature, the amount to be quoted, and the effect of the use on the potential market value of the copyrighted work.

In any case, copyright law would remain a balancing act, with judges making case-by-case decisions. Owning a copyright is not the same as owning a house. In order to encourage creativity, Congress granted long-lasting copyright monopolies (currently 50 years after the death of the author); but the law is also intended to promote the public good by disseminating art and knowledge through secondary uses.

Including unpublished material in the fair use section of the copyright law would expand this utilitarian view, which received an eloquent boost in last month's Harvard Law Review by Judge Pierre N. Leval of the U.S. District Court , for the Southern District of New York. "All intellectual creative activity is in part derivative," said Leval, who made no brief for the pending legislation. "There is no such thing as a wholly original thought or invention. Each advance stands on building blocks fashioned by prior thinkers."

With reporting by Andrea Sachs/New York and Gavin Scott/Chicago