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The Pitfalls of Publishing Personal Letters
by
Posted On February 14, 2023
Several news outlets reported in December 2022 that Donald Trump plans to release a book this year that reprints his private correspondence with celebrities—Elton John, Michael Jackson, Princess Diana, etc. Perhaps the book will be good; perhaps not. One thing I wonder is whether Trump will seek permission from these celebrities or their estates to publish letters written by them.

He should, because U.S. law is clear on this matter: The copyright for these letters rests with the writers, not Trump himself.

COPYRIGHT, COPYRIGHT, WHO’S GOT THE COPYRIGHT?

Mark Fowler, a New York attorney who works with publishers, broadcasters, and other media companies, states it plainly in his blog Rights of Writers: “If I send you a letter, unless I have an agreement with you to the contrary, I continue to own the copyright.”

The letter’s recipient—Trump, in this example—owns the physical letter and thus can sell it, show it to people, give it away, or, according to an 1867 Kentucky case, Grigsby v. Breckinridge, tear it to pieces. He cannot, however, publish the letter. Transferring ownership does not transfer copyright, which means only the letter writer or their estate has the right to reproduce the letter, as well as create derivative works. If Trump had found these letters in, say, a university library, he still wouldn’t have the right to publish them, unless copyright had been assigned to the library.

With this book, then, Trump needs to do what he never did with Twitter: He needs to ask before pressing Send.

This is backed up by several court cases, notably Salinger v. Random House. In 1984, the British writer Ian Hamilton was working on a biography of the reclusive writer J.D. Salinger. The author had refused to cooperate with Hamilton, as had a number of Salinger’s friends and neighbors. So, Hamilton went digging in archives, where many letters written by Salinger had ended up.

When Salinger found out that Hamilton had quoted from these letters, he sued for copyright infringement, losing at trial but winning on appeal. The appeals court ruled that a biographer may report facts from unpublished letters but “has no inherent right to copy the ‘accuracy’ or the ‘vividness’ of the letter writer’s expression,” and Random House axed the biography.

Four years later, the same court heard a similar case, between Ellen Wright, widow of the writer Richard Wright (author of Native Son and Black Boy, plus a lot more), and the biographer Margaret Walker, who had quoted from several of Wright’s unpublished letters and journal entries. This time, the court allowed the borrowings, ruling that they amounted to fair use. Why the change?

For one thing, Walker used only 1% of Wright’s work, whereas Hamilton, according to the court, copied “at least one-third of 17 [Salinger] letters and at least 10 percent of 42 letters.” But the difference wasn’t just quantitative. “Of the fourteen sections taken from [Wright’s] journal entries,” the court ruled, “only three, under a generous reading of expression, adopt [his] creative style.” In other words, what Walker quoted was humdrum, whereas Hamilton looted passages that showed, in the words of the court, “a sufficient degree of creativity as to sequence of thoughts, choice of words, emphasis, and arrangement to satisfy the minimal threshold of required creativity.”

A WORD IN PRIVATE

There are also privacy concerns in publishing personal letters. Trump is no one’s idea of a sympathetic ear, and yet there may still be elements of these letters that would be better not shared with the world (or the MAGA hardcores who are the book’s primary audience).

The estates of Michael Jackson and Princess Diana may be especially nervous about the letters’ contents. Jackson lived a controversial life; many people still think he should have been found guilty of child sexual abuse. His own words splashed across a Trump production may be an assault on the senses. As for Diana, between Netflix’s The Crown and the round-the-clock spectacle of Prince Harry’s Spare, King Charles III would be in no mood for more dour headlines at his family’s expense.

Can someone be sued for invasion of privacy if they publish a personal letter? In the U.K., at least, the answer is yes, thanks to none other than Meghan Markle, the Duchess of Sussex. In 2019, she sued the publisher of The Mail on Sunday, which reproduced parts of a letter that she had sent to her father, Thomas Markle, the year before. The duchess won her case, a victory that was upheld on appeal when a panel of judges ruled that she had a “reasonable expectation of privacy” in the contents of the letter, adding that “[t]hose contents were personal, private and not matters of legitimate public interest.”

WHY WE CAN’T JUST TWEET INSTEAD

Why all of this fuss over letters? Well, because they can be great reads. Wright and Salinger, in their letters, discussed obsessions, emotions, loves and hates, rising and falling, the human condition, books and movies, history, politics, and whatever else came to mind. Many of their letters read like essays.

Another example is Flannery O’Connor, whose letters brim with her thoughts on, and delight in, Christianity. To the novelist John Hawkes, she wrote, “There are some of us who have to pay for our faith every step of the way and who have to work out dramatically what it would be like without it and if being without it would ultimately be possible or not.” If she had put these words in an essay, we would say they were literature.

According to some estimates, H.P. Lovecraft wrote more than 80,000 letters in his lifetime, many of which are lost. Arkham House, the publisher founded in his honor by writers August Derleth and Donald Wandrei, published five volumes of abridged Lovecraft letters between 1965 and 1976. Over the years, other publishers have tried to release more. In 2003, Hippocampus Press began publishing what it claims is all of Lovecraft’s extant letters in a planned 23-volume collection.

Some have complained that Lovecraft should have spent more time writing fiction and less time corresponding. Lovecraft himself answers this charge in—what else?—a letter: “I write such things exactly as easily and as rapidly as I would utter the same topics in conversation; indeed, epistolary expression is with me largely replacing conversation, as my condition of nervous prostration becomes more and more acute. … My loquacity extends itself on paper.”

Trump, then, should tread lightly with his decision to publish letters he’s received, which may be highly private and, in the best hands, transcend what we now think of as personal correspondence—emails and tweets—to be disquisitions on dreams, ambitions, and philosophy. No wonder letter writers get touchy about ownership!


Anthony Aycock is the author of The Accidental Law Librarian (Information Today, Inc., 2013). He is a freelance writer (anthonyaycock.com) as well as the director of the North Carolina Legislative Library.



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