[This article is for information purposes and it is not intended to serve as legal advice.]
You have received and sent a lot of letters and e-mails over the years and are thinking of including some of them in your new book. Indeed, you may be considering using such correspondence in a biography relating your “life story” or in a work of fiction reciting the “life story” of a fictional person. This may not be as simple as it might appear as there are a number of elements to consider before you send your completed work to your publisher.
Correspondence, regardless of its format, falls into three basic categories: correspondence you received from another individual; correspondence you sent to another individual; and correspondence you obtained that was written by one person addressed to a different person.
With respect to “correspondence you received from another individual,” be it a traditional “snail-mail” letter or an electronic communication, the general rule is that the writer, and not the recipient, “owns” the copyright and you may not use it in your work without the permission of the copyright owner except to the extent permitted by the Doctrine of Fair Use. However, the owner of the copyright may not be the individual from whom you received the correspondence as he or she may have sold or transferred the copyright to another entity. Accordingly, you must assure yourself that you have the permission of the legal owner of the copyright before including it in your work. In any event, any such permission should be in writing.
With respect to such “correspondence you sent to another individual,” presumably you own the copyright so the Doctrine of Fair Use is not an issue. If, for some reason, you no longer own the copyright, you must obtain the permission of the copyright owner or risk be charged with infringement of the copyright. In any event, the correspondence included in your book, regardless of copyright ownership, must be evaluated in terms of the “invasion of the privacy” of a person mentioned in the text and the potential for litigation brought by someone alleging he or she was “defamed” in your writing.
With respect to such correspondence you obtained from any one of a number of extramural sources such a gift from another person not the writer, as a bequest set out in a will or by purchasing the documents at a garage sale that was “written by one person addressed to another person,” there is the potential for copyright problems except as tempered by the application of the Doctrine of Fair Use. Thus it is necessary to locate the copyright owner and obtain written permission to use the material. In addition, you, as the author of the work in which the material is used, may be exposed to litigation for alleged “invasion of privacy,” libel and, or, “defamation” notwithstanding the fact that the offending material was the work product of another person.
Libel is a written false statement about an individual or an entity. In contrast, slander is a spoken false statement about an individual or an entity.
An author may obtain and rely on an insurance policy for protection in the event he or she is sued for alleged libel or defamation. Such an insurance policy typically obligates the insurance company to provide the insured with legal representation in a lawsuit and for the payment of damages, if awarded, up to the limits of the policy. The coverage is triggered when an author is sued for an alleged injury arising out of the publication of written material that is claimed to have libeled a person or organization or disparaged a person’s or organization’s goods, products or services. Such an insurance policy, however, typically denies or excludes coverage in situations where the alleged injury arose as the result of the written publication of the offending material if done by, or at the direction of, the insured with knowledge of its falsity.
A question frequently posed by an author with respect to libel: what is the difference between “fact” and “opinion?” A posting entitled “Nothing But the Truth,” posted on the Internet at https://www.auburn.edu/~murraba/truth.html provides some insights into this important but complex issue.
Another question that is often raised by an author: How can I protect my original idea? Freelance writer Michelle Fabio, Esq., provides some insights concerning this issue in her article posted on the Internet at https://www.legalzoom.com/articles/three-ways-to-protect-your-original-idea
Indeed, there are many articles posted on the Internet addressing issues concerning writing and publishing a book that are available to the interested author. Below is a sample selection of such postings that you may wish to explore.
Can I Mention Brand Name Products in My Fiction?
Could I Be Liable for Libel in Fiction?
Titles and the Law: Can I Call My Novel “The Great Gatsby”?
Copyright in Fictional Characters: Can I Have Don Draper Make a Cameo Appearance in My Novel?
Clearly there are many issues that should be considered and resolved prior to the publication of an author’s work. It would be advantageous to the writer to consult with an attorney to make certain he or she is not about to enter into a minefield of legal difficulties as the result of having his or her book published.
Harvey Randall, a BookLocker author, currently edits and publishes a LawBlog focusing on Public Personnel Law. He formerly served with the Central Administration of the State University of New York and the New York State Governor’s Office of Employee Relations. He has an MPA from the Maxwell School, Syracuse University and a J.D. from Albany Law School. His articles have appeared in a number of periodicals including Private Pilot Magazine, The Review of Popular Astronomy, New York State Municipal Lawyer and Computer Dealer Magazine.
He is also the author of the following books:
The General Municipal Law Section 207-a and 207-c Case Book – 2014 EDITION
Layoff, Preferred Lists and Reinstatement (2014 Edition)
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I have a lot of letters that my (ex)husband wrote to me almost 50 years ago. It was at the height of the Viet Nam war, and I have thought about writing an account of our lives at that time. Do these letters, written many years ago, belong to me? They are all in my possession. Can I use them in writing an account of that time in our lives – primarily for our children but also, possibly, for others? He is still alive, though very ill, and it was a very bitter divorce. I would want to know that I was on solid ground before using these letters, which are truly of potential interest to a broader audience.
Thank you for the interesting and informative article.