Including short letters in an autobiography

[SteveB]

Hi

Before I approach the copyright holder I would like to be sure of my facts, and I hope you guys can help please.

(This is a question which has been floating around in me for many years. I never found your forum before - thank you.)

Between 10 & 20 years ago a kind chap sent me some letters in reply to my own. The letters were sent to me in the capacity of teacher/student (I was the student) and the two letters in question were were short (about 4 or so sentences only).

The chap died more than 10 years ago and I would like to write a book (well, more of an autobiography really), and these two letters would make a nice compliment to the story. They are not vital, but it would be 'nice' to print them in full. (Better still, include the actual scanned letters, as they marked certain stages in my life.)

The man set up a trust before he died to protect his works, and I am aware the trust protects the letters he sent to people too.

So,

- I believe I may reproduce excerpts of the letters without breaching copyright. Is this correct?

- The letters are only short, so one sentence will be perhaps a third of the overall document. Is this a problem?

- The content of the letters is about me, my personal development as he saw it. Does this make any difference to the ownership of the content?

- The nature and tone of the book will be complimentary about the man and showing gratitude for what he gave. I will contact the trust to seek permission with this in mind (I hope they may agree as I am in effect promoting him as well as telling my own story), but wondered whether the nature of the book has any bearing on copyright too?

- I would even consider making a donation to the trust by way of thank you for permission to publish the letters in full. But I don't have much to give. I suppose it's impossible to put a price on such things.

I hope the above make sense, and thank you for your help.

[AndyJ]

Hi Steve,

It's good to see that you have appreciated from the outset that a. copyright exists with these letters and b. that copyright belongs to the estate of the author. Many people assume that because they own something like letters, that entitles them to do whatever they want with them, including publishing them without permission.

Unfortunately neither of the two most appropriate exceptions (quotation and criticism/review) apply in your case because both require that the source work must previously have been made available to the public, and clearly that won't be the case with these letters. I don't think that the other main exception, namely private research is available in the circumstances you describe, and certainly wouldn't be if you published your autobiography on a commercial basis.

The fact that the letters are personal to you does not make any difference legally to the position over copyright (in much the same way as it doesn't assist the subject of a portrait), however see my later paragraph for the rights that you may have in this respect.

So that means, effectively, that you have two options: paraphrase the contents you wish to use, or obtain permission from his heirs to quote them verbatim. In theory you would not be prevented from copying a short insubstantial part each of the works but given that the letters themselves are short I suspect it would be difficult to argue that what was to be quoted was really insubstantial (for instance, something like 'Dear Steve') since obviously you want to quote a part which is significant, hence it is likely, in qualitative terms, to form a substantial part of the letter.

Given that you wish to use the letters in a way that enhances the reputation of the author and surely will not undermine the ability of the estate to monetise his legacy, I'm sure you are likely to get a fair hearing for your request.

Bear in mind that you hold an ace of your own. Even if the trust holds copies of these letters (they may not since they are personal ones to you) they will probably be barred due to Article 8 of the Human Rights Act and the Data Protection Act from publishing them themselves without your permission, which would obviously be required if you own the only extant copies. So if an official biographer or other researcher wished to see or use the letters, or the trust wanted to mount an exhibition or compile an anthology of the author's works, you have a bargaining chip.

Good luck with your venture.

[SteveB]

Thank you Andy

That is extremely helpful (sort of what I feared, but at least I know where I stand).

Though there may, from the sound of it, even be some ambiguity over my quoting a single line, as this may be the most meaningful line, to me at least. And this may therefore count as 'substantial'.

The difficulty in paraphrasing is that the chap in question was well known for being precise and clear in what he said, and to change the words at all, while attributing a definite meaning to them, could be tricky.

Hmmm...?

I need to include the contents in some form or other really, so will approach the Trust at the time and hope they see the request for what it is and that an agreement can be made.

Thank you again for your help Andy. This has been invaluable.



Steve

[Nick Cooper]

Andy, I don't think I previously realised the implications of 1ZA in the 2014 regulations, as regards now allowing quotations, "whether for criticism or review or otherwise" - my emphasis, i.e. for pretty much any valid applciation.

I'm currently working on a book relating to one particular work of an author whose lifetime published works will be public domain at the time of (my book's) publication. Obviously this allows free use of all said author's lifetime published material, but I also wish to use short quotes from letters by the same author that were published more than 20 years after their death, as well other published accounts by others (either contemporaneously or later, including press reports) of how the work in question was produced.

Since many of the copyright-protected quotes more illustrate the "story" of the work in question's production, rather than criticism or review of it (as a justification for fair dealing), I was working on the assumption that at one stage I would need to be seeking the relevent permissions for them. If my reading of 1ZA is correct, though, it seems that this is no longer necessary, as I believe the quotes all fit within the general bounds of fair dealing generally (e.g. length, suitable acknowledgement of source, etc.).

If this is correct, then it is quite surprising, given that advice on seeking permissions from the likes of the Society of Authors still seems to maintain that they should be sought in all circumstances for published works. Indeed, the SoA notes that most major publishers maintain permissions departments to handle what are reputedly the very large numbers of such enquiries that they receive. One would think that if 1ZA eliminates the grounds on which a substantial number of requests for permissions that were previously required, the implications would have been widely discussed in the industry, but I don't see any evidence of that having taken place.

Is this an case of the publishing industry keeping quiet in order to maintain exsiting permissions practices and - by definition - control, or am I just reading 1ZA wrong?

[AndyJ]

Hi Nick,

I think you are right that publishers have generally continued to maintain permissions departments in order to try and exercise some control over their authors' work. The quotation exception is still very new and I suspect many people do not know about it yet, and the publishers are counting on this being the case.

Also, as we haven't had any court cases involving the quotation exception, it is hard to know how broad its reach is. I seem to recall Mr Justice Arnold (possibly the High Court's leading IP judge) mentioning during a lecture that he thought the 'or otherwise' bit was very significant.

It has always been the case that 'fair dealing' was only available as long as it was 'fair', and so anyone who tries to quote a very long passage from a literary work when this could not be justified, will probably come unstuck. But we don't know at this stage whether the quotation exception could be used to 'quote' an artisitic work, in a way which effectively amounted to quoting the whole of the work (cf US caselaw following Perfect 10 which says that the use of thumbnails is fair use).

[Nick Cooper]

Thanks, Andy. Looking around it does seem generally that the opinion is that 1ZA really is as wide-ranging as it appears, and thus is something of a seismic shift in putting the use of reasonable quotations without the onerous process of seeking permissions on a firm footing. It's hardly surprising that rights holders are not rushing to acknowledge it, but as you say generally it will hinge on the length of the quotations, and I daresay they will have to pick their fights very carefully if they want the case law to develop in their favour.