Tuesday, October 19, 2010

The Steinbrenner Letters

Techdirt alerted me to two recent NY Times article about love letters written by former New York Yankees owner George Steinbrenner.  Rest in peace, Mr. Steinbrenner.  The first NY Times article describes the history of the letters and provides a copy of one of the them.  The second article discusses the effects of the first article and the Yankees' continued objection to their publication.  In short, 77 year old Mary Jane Schriner once dated Steinbrenner and recently shared a series of letters he wrote to her in 1949.  A writer contacted her about publishing a memoir containing the letters and they contacted the team, which claimed that copyright in the letters would be violated if the letters were published.  I’m not saying this just because I’m a Yankees fan, but the team is right.

Without marching through a fair use use analysis under copyright law or the free speech concerns of potentially barring publication of the newsworthy letters, the Times' original publication of the letter is probably not an issue.  The continued availability of the letter online is a closer call that I’d leave for a case that I’d hate to love to see: New York Yankees vs. New York Times.  Perhaps a court could provide some insight into how “commercial” use under the first fair use factor applies online since the freely accessible digital version of the article on the Times web site shows ads, assuming that showing ads on a web site is "commercial" to begin with.  There’s also an interesting question about whether the continuing availability of the letter online substitutes, rather than complements, the original work under the fourth fair use factor.  (citations omitted because the Yankees game starts soon)

However, it seems doubtful the above case would ever happen. The second Times article quotes NYU Professor Diane Zimmerman noting the distinction between ownership of an intangible copyright and ownership of the physical object in which the expression is embodied.  The appropriately titled 17 U.S.C. § 202 makes this clear: "Ownership of copyright as distinct from ownership of material object."  So regardless of who has the actual letters, they can’t reproduce them or distribute copies without permission. See §106. While the Steinbrenner family owns the copyright (see below), if they can’t ever get the actual letters from Schriner or someone she sells them to, then the only way they could ever publish the letter’s contents would be via the scan on the Times’ or other web sites.  Based on the information in the Times articles, the team and family’s interest seems more about protecting the private nature of the letters.

Professor Zimmerman also referenced J.D. Salinger’s successful use of copyright law to prohibit the publication of copyrighted letters in a biography about him.  One out of context bit of dicta summarizes the case: "We seriously doubt whether a critic reviewing a published collection of the letters could justify as fair use the extensive amount of expressive material Hamilton has copied."  Salinger v. Random House, 811 F.2d at 100.  On the same page, the Salinger court goes on to note that discussing facts stated in Salinger's letters is fine (facts are not copyrightable), "[b]ut Salinger has a right to protect the expressive content of his unpublished writings for the term of his copyright, and that right prevails over a claim of fair use under 'ordinary circumstances.'  Harper & Row v. Nation Enterprises, 471 U.S. at 555, 105 S.Ct. at 2228.  Public awareness of the expressive content of the letters will have to await either Salinger's decision to publish or the expiration of his copyright, save for such special circumstances as might fall within the 'narrower' scope of fair use available for unpublished works, id. at 564, 105 S.Ct. at 223-33."  The Supreme Court in Harper & Row provides clear boundaries for such "narrower" scope: "The right of first publication encompasses not only the choice whether to publish at all, but also the choices of when, where, and in what form first to publish a work." id.  Now things are getting circular - what about the Times first publication of the letter?

On a side note, Salinger has been back in the copyright news trying (and so far succeeding) to prevent publication of a “sequel” based on Catcher in the Rye . While searching for a link to a good summary of that issue (here), I came across the fan site www.deadcaulfields.com.  If courts in the Second Circuit continue to side with the Salinger estate, and perhaps (explicitly) extend protection to the character of Holden Caulfield (see generally this brief), there could be some really interesting copyright cases when read in conjunction with the Harry Potter case.  Also, there’s the UDRP and trademark law but (trademark) fair use should get in the way of both.

Getting back to the letters, Mr. Steinbrenner is clearly the author and thus original owner of the copyright.  17 U.S.C. 201(a).  Upon his death, his interests passed to his estate, assuming he never transferred “all copyrights I might own or ever have created” in a contract during his life or in his will. The enforceability of a transfer of something you own but either don’t realize you own or forgot about is a task for a much more caffeinated brain, in addition to being an interesting side effect of our formality-free Berne convention world.  Looking to Section 303 of the Copyright Act, the copyright in the letters lasts 70 years from Mr. Steinbrenner’s death.  Even more important, game 4 of the Yankees vs. Rangers ALCS playoff just started and I'm missing the first inning...