Literary Property

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Literary Property

The interest of an author in an original and expressive composition, that entitles the author to the exclusive use and profit thereof, with no interest vested in any other individual. The corporal property in which an intellectual production is embodied.

The concept of literature as property grew from the notion that literary works have value, and that writers deserve legal protection from unauthorized use of their work by others. Before the fifteenth century, writing generally was an activity performed for royalty and organized religion, and literature was not considered a commodity. With the invention of the printing press in the fifteenth century, along with a societal trend away from royal and religious control, literature came to be seen as an item of value that could be bought and sold.

As literature became a commodity, the law slowly moved to protect the economic interests of writers. In England the Statute of Anne was passed by Parliament in 1710 to limit the Monopoly of rights that publishers held over writers. Similar Copyright laws migrated to the American colonies, and comprehensive federal copyright statutes now regulate the right to own and sell literary property in the United States. In the absence of an agreement to the contrary, copyrights to literary property now vest automatically in the author as soon as the work is affixed to a tangible medium.

A precise definition of literary property is elusive. According to Eaton S. Drone, an influential nineteenth-century treatise writer, there is no literary property

in thoughts, conceptions, ideas, sentiments, etc., apart from their association…. their arrangement and combination in a definite form constitute an intellectual production, a literary composition, which has a distinct being capable of identification and separate ownership, and possessing the essential attributes of property. The property is not in the simple thoughts, ideas, etc., but in what is produced by their association. (A Treatise on the Law of Property in Intellectual Productions in Great Britain and the United States [1879]) Ultimately, lawmakers have left the job of determining what constitutes literary property to the courts, which have fashioned some general guidelines.

J.D. Salinger Biography

Biographers of living persons often encounter reluctant or hostile subjects. Such was the case for biographer Ian Hamilton, whose completed manuscript about novelist J. D. Salinger had to be rewritten because Hamilton had violated Copyright law by quoting from Salinger's unpublished letters.

Salinger, the author of The Catcher in the Rye (1951) and several other acclaimed works, has lived reclusively since the early 1960s and did not publish any new works between 1965 and 1996. He has zealously protected his privacy, creating an aura of mystery and helping to establish his status as a cult figure.

Hamilton, a noted literary biographer, tracked down and quoted from unpublished letters that Salinger had written between 1939 and 1961. As Hamilton's book containing those quotations neared publication, Salinger sued, noting that as the author of the letters he retained the right of publication. Hamilton then eliminated direct quotations but substituted extensive paraphrases that tracked the original language very closely.

The federal courts agreed with Salinger, holding that Hamilton could write about the factual content of the letters but that Salinger retained the letters' "expressive content." According to the courts, Hamilton's paraphrasing invaded Salinger's expressive content and formed a substantial part of Hamilton's manuscript (Salinger v. Random House, 811 F.2d 90 [2d Cir. 1987]). Hamilton was forced to rewrite his manuscript. In the end, the book, In Search of J. D. Salinger (1988), was as much about the legal case and the pursuit of Salinger as it was about the novelist's life.

Not all literature qualifies as literary property. Furthermore, not all the content in a piece of literary property can receive protection from copying or use by other authors. Only the original expressive content of a piece of literature qualifies as literary property.

Mere ideas generally do not constitute literary property. For example, the idea of writing a novel set in Okefenokee Swamp, in Georgia, is not literary property. But if a person writes such a novel, the expressive content of the novel is literary property, and the author owns the rights to that property. After the novel is published and sold, another person may write a book set in Okefenokee Swamp. However, the writer of the second book may not use the original expressions, characters, and sequence of events created by the author of the first book.

No bright line distinguishes protected and unprotected characters and story lines. Rather, courts place these elements on a continuum from simple to complex. On this continuum general qualities and emotional features do not receive copyright protection. However, the more a character or story is developed, the more it comes to constitute literary property, and the more copyright protection it receives.

Should Biographers Be Allowed To Quote Unpublished Literary Property?

The protection of literary property by the federal Copyright statute is intended to create economic incentives that induce authors to create and disseminate new works. A copyright is a reward to an author for making a contribution to society. Nevertheless, the author's copyright Monopoly is not unlimited. The doctrine of fair use permits other authors to copy or adapt limited amounts of the copyrighted material without infringing the copyright. Fair use allows someone other than the original author to make secondary use of a copyrighted work to create a new work. The creation of the new work is also viewed as a contribution to society.

The competing interests of copyright and fair use have generated conflict over the quotation of unpublished works, primarily letters, by literary biographers. The U.S. Court of Appeals for the Second Circuit's decision in Salinger v. Random House, 811 F.2d 90 (1987), concluded that biographers cannot invoke fair use when dealing with unpublished letters. Defenders of the decision assert that it allows authors to control material they do not want published. Critics argue that this restrictive view of fair use ignores the legitimate need of biographers, historians, and other scholars to mine rich sources of unpublished material and present their findings to the public.

Defenders of Salinger and its restrictions on the quotation of unpublished works note that the purpose and character of the use of unpublished material are one factor in determining fair use. For example, though a literary biography is a work of criticism and scholarship, biographical works are generally published by commercial, for-profit businesses. If previously unpublished material were used in such a book, the publisher would promote the book by emphasizing that it contained that material.

Because biographies are written for profit, supporters of restrictions argue, biographers should not be entitled to any special consideration in determining fair use. A biographer is free to read unpublished letters and extract their factual content, but copying their author's expression of particular facts is not, and should not be, permitted. The reader of the biography will still benefit from the new factual content. Therefore, it cannot be argued that banning the quotation of unpublished work defeats the advancement of knowledge and scholarship.

Supporters of restrictions further contend that unpublished works deserve heightened protection because their authors have not yet commercially exploited them. If a biographer could quote generous selections from a series of letters, the potential market for and value of these unpublished letters would likely decrease. Even if the author asserts that he has no intention of publishing the letters, the law should preserve the author's opportunity to sell the letters if a change of mind occurs. The author's copyright must be protected to allow the author the first chance to reap an economic benefit.

Critics of Salinger and its reasoning point out that unpublished letters are usually "public," having been donated by the recipient to an academic or research library for scholarly use. It is unfair, charge the critics, to permit persons who can travel to an academic library holding the unpublished letters of a literary figure to read those letters, while denying the rest of the public the opportunity to learn more about the letter writer.

Authors who write letters know that they surrender ownership of them when they send them. Furthermore, authors do not write letters for financial gain; they write them as a simple form of communication with another individual. Critics of Salinger suggest that it should thus be fair use to quote from unpublished letters—while noting that it would not be fair use to quote from an unpublished novel or a short story without the author's permission, since such a work is generally written for economic exploitation.

Critics of the Salinger decision also argue that limiting biographers to reciting bland and brief digests of unpublished letters does not advance the public interest. They contend that the use of quotations is essential in literary biographies, where the biographer seeks to compare the public author and the private person. The comparison of expression between published works and letters can reveal consistency and contradiction. Further, the use of the subject's own thoughts and words demonstrates to the reader the complex relationship between art and life.

These critics also dismiss the conclusion that quotations from letters will diminish the market value of the letters for future publication. They point out that the publication of a literary biography generally sparks new interest in the subject and in the subject's works, including a collection of letters. Because of this response in academe and the marketplace, critics contend that the biographer actually enhances the status of the subject.

Critics also hold that the Salinger decision is motivated by privacy concerns. They note that if the author of unpublished letters does not wish to permit a biographer to investigate her life, a denial of permission to quote from the letters is an effective way of maintaining privacy. Critics are more troubled by grants of permission to quote that are accompanied by the requirement that the manuscript cannot be published without approval of the subject. Critics maintain that a subject's power to control the content of a book is antithetical to the promotion of scholarship and to the public purposes of copyright.

Cross-references

Privacy.

A determination of copyright infringement also can depend on the degree of similarity between the literary property and subsequent literary works. For example, assume that a novelist has developed a character named Hijinks, a lovable pool cleaner who moonlights as a private detective and drinks only papaya juice. This is a well-defined character, so it is the property of the novelist and no one may copy it without permission. If a second author writes and sells a book that features a private detective who cleans pools part-time, this would probably not be sufficient borrowing of an original expression to constitute copyright infringement. The second author may even give the pool-cleaning private eye a penchant for fruit juice and be safe from suit. However, if the second author's main character is a papaya-juice drinking, pool-cleaning private detective named Hijinks, a judge or jury could find infringement and award damages to the first author.Before 1976 the term literary property was used to describe the author's state of ownership prior to publication. When an author fixed a piece of literature in a tangible medium, such as on paper or on an audiotape, the author owned the work forever and could exclude others from using it forever. Once the author published the work, the work became governed by copyright laws, which granted exclusive rights to the author for a fixed term of years.

The effect of publication was eliminated by the Copyright Act of 1976, 17 U.S.C.A. § 101 et seq. Under this act all literary property is subject to statutory provisions from the moment it is affixed in a tangible medium.

The term literary property also can describe the tangible instrument that contains the words of a literary work. Novels, short stories, poems, plays, essays, letters, lectures, sermons, and songs are some basic forms of literary property. They can be contained on any tangible medium, including audiotape, videotape, and paper.

Further readings

de Grazia, Margreta. 1992. "Sanctioning Voice: Quotation Marks, the Abolition of Torture, and the Fifth Amendment." Cardozo Arts and Entertainment Law Journal 10.

Diviney, Catherine A. 1987. "Guardian of the Public Interest: An Alternative Application of the Fair Use Doctrine in Salinger v. Random House, Inc." St. John's Law Review 61.

Jaszi, Peter. 1991. "Toward a Theory of Copyright: The Metamorphoses of 'Authorship.'" Duke Law Journal 1991.

Peppe, Vincent H. 1988. "Fair Use of Unpublished Materials in the Second Circuit: The Letters of the Law." Brooklyn Law Review 54.

Cross-references

Intellectual Property.

literary property

n. the writings of an author which entitles him/her to the use of the work, including publication, and sale or license for a profit to others who will then have the right to publish it. Literary property includes books, articles, poetry, movie scripts, computer programs, and any writing which lends itself to publication or use. A close question can arise when a professional writer sends letters to others: are they literary property? Probably not if they were intended to be just personal communications. J. D. Salinger, author of Catcher in the Rye, thought otherwise and sued to prevent use of his letters sent to another writer. The case was compromised and settled. To protect any literary work and profits from it, the writer should mark it as copyrighted. (See: copyright)

LITERARY PROPERTY. This name has been given to the right which authors have in their works. This is secured to them by copyright. (q.v.) Vide 2 Bl. Com. 405-6; 4 Vin. Ab. 278; Bac. Ab. Prorogation, F 5; 2 Kent, Com. 306 to 315; 1 Supp. to Ves. jr. 360, 376; 2 Id. 469; Nicklin on Literary Property; Dane's Ab. Index, b. t.; 1 Chit. Pr. 98; 2 Amer. Jur. 248; 10 Amer. Jur. 62; 1 Law Intel. 66; Curt. on Copyr. 11; 1 Bell's Com. B. 1, part 2, c. 4, s. 2, p. 115; 1 Bouv. Inst. n. 508, et seq. Vide Copyright.