The Australian writer Caroline Baum is usually well worth reading for her insights. She is widely read, hard working and resourceful. However, in what I feel sure is a momentary stumble, she appears to give some unfortunate advice in the pages of the «Australian Author», December 2011. The monthly magazine is the official organ of the Australian Society of Authors and is sent out to members.
Planning to sell to a public library the correspondence she has gathered from writers, she offers this advice:
It is worth remembering here that once you receive a letter, no matter in what form, you own it in every sense, including copyright.*
Readers, please be warned: in fact the opposite is the case.
According to the Australian Copyright Act 1968 as amended, the person who writes a letter always owns copyright in the contents of the letter. Receiving a letter gives the recipient ownership of the material object, the paper and ink and envelope and the cancelled stamp, but not the copyright in the written words.
The Australian federal Attorney General’s Department offers the advice that “An assignment of copyright must be in writing and signed by or on behalf of the assignor (ie the copyright owner) to be legally effective.” Further:
What does copyright protect? Works: The Copyright Act protects original literary, dramatic, musical and artistic works. [….] Literary works: Most materials that are reduced to writing or some other material form by a creator and which are not trivial in content are literary or dramatic works. Such works may be in electronic or hard copy form. Such works include letters, e-mails, articles, novels, poetry, song lyrics, timetables, databases and computer programs. No level of literary merit is required for copyright to subsist in a work.”
US law is similar. Upon learning in 1986 that the British writer Ian Hamilton intended to publish «In Search of J.D. Salinger: A Writing Life (1935-65)», a biography including letters Salinger had written to other authors and friends, Salinger sued to stop the book’s publication. The book was finally published in 1988 with the letters’ contents paraphrased. The court ruled that Hamilton’s extensive use of the letters went beyond the limits of fair use, and that “the author of letters is entitled to a copyright in the letters, as with any other work of literary authorship.” (Wikipedia, http://en.wikipedia.org/wiki/J._D._Salinger#Legal_conflicts)
It is sad and ironic that Ms Baum’s inappropriate legal advice was published in the monthly journal of the ASA, an organisation set up specifically to protect the rights of authors who write books, reviews, articles and letters.
Over the last year there have been other unfortunate incidents that result from the way the ASA is managed and, in the opinion of some people, mismanaged, incidents that have led me to resign from the ASA after forty years’ membership. In recent weeks others have done the same, including some on the Board of Management.
Of course anyone who writes a piece for the ASA journal should be able to assume that an editor, if not a more senior person, would run their eyes over the material to check for minor mistakes and inadvertent errors like this. I am certainly grateful for several corrections to my writing from sharp-eyed editors, over the years. So I would normally hesitate to criticise a writer expressing an honest opinion, but in this case authors and publishers who follow what appears to be Ms Baum’s advice could end up in a swamp of damaging and expensive legal nightmares.
So please don’t imagine that you own copyright in any of the letters you receive. It ain’t so.