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Ex Lovers, Embarrassing Missives, and the Law

WIRED magazine recently presented an interesting question to me. Apparently, a guy was dating a girl, he sent her a series of romantic letters, and then she found out that he was a low-down dirty swine. To exact her revenge, Girlfriend posted the letters on her myspace page with angry and mocking commentary.

Here is the exact question:

My ex-girlfriend recently posted one of my gooey love notes on her blog. I’d rather the world didn’t know that I used to refer to this vindictive harpy as “babycakes.” Can I compel her to delete the letter? (source)

I gave WIRED a long explanation, but (of course) they couldn’t be expected to give all the column space required to print my long and nuanced response. The answer they printed boiled down to: “This transfer of ownership is akin to you buying a book or magazine. That transfer, I think, is a publication, even though it was to just one person.” (source)

Naturally, I cringed when I saw that.

Although it isn’t completely inaccurate, without the nuance of my discussion, it makes me seem like I don’t know a whole lot about copyright law. A very nice student at Harvard Law, very politely, pointed that out to me. I replied to her with my full analysis — which she inspired me to post here.

Accordingly, had WIRED wanted to devote way more space to this question than is warranted, this would have been my answer.

I. Copyright

An author has a copyright in his original work of authorship as soon as it is in a fixed tangible medium. Therefore, looking at this very simplistically, yes, Boyfriend has fixed his “work” in a tangible medium. It was copyrighted the moment he completed it.

It is a common misperception that works must be registered in order to to be copyrighted. While this is not true, they must be registered in order for the author to get statutory damages or attorneys fees at the end of a successful copyright infringement lawsuit. Accordingly, even if Boyfriend sued Girlfriend, he’s just looking at winning a court order that she no longer distribute it plus actual damages – which would likely be $0.

So, presuming that Boyfriend has a case at all, he’s not very scary, is he?

But, lets see if he can even go that far.

Does Boyfriend even have a valid copyright? Lets go back to that word “original.” I sure hope that Boyfriend didn’t go digging through obscure song lyrics to rip off someone else’s work. If he did, his letter might not even be sufficiently original to be protectable. Of course, he might have only taken a little bit of some Joy Division lyrics, in which case that borrowing would probably be “fair use.” Something for Boyfriend to ponder before he tries to get all bad ass.

Speaking of fair use, that is something that Girlfriend may likely claim in her defense. Most say that fair use is an affirmative defense to copyright infringement. I say that fair use simply is not an infringement. Whichever way you slice it, if it is fair use, Girlfriend is going to win.

Part of the fair use analysis is whether the work is “published.” Published and unpublished works are treated differently under fair use. Simply put, it is easier to win a fair use argument with a published work. Typically, and historically, a letter from one person to another would have been considered to be “unpublished,” since but one copy exists when you take a quill and put it to papyrus. See Salinger v. Random House, 811 F.2d 90 (2d Cir.1987).

I think that modern technology *might* persuade a court to break ranks with the Salinger v. Random House decision. The question is not settled when there is a copy on a hard drive and the author runs off a copy to send to another party (or if there is, I’m not aware of any case law that settles the issue). Under traditional analysis, the letter would not be “published,” but I see an argument as to why it might be – and I’d love to see a court re-address the Salinger analysis.

In any event, if Boyfriend typed the original on his computer and printed it, Girlfriend might have a better argument that the work was “published.”

I believe that when Boyfriend gave the letter to Girlfriend, he transferred ownership of the physical letter to Girlfriend. For the reasons stated abover, theoretically, that is a “publication” — even though it was to just one person. The copyright act says that “Publication” is “the distribution of copies…of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending.” More fun, the legislative reports on the Copyright act illuminate this a little more — according to the reports, “to the public” means “distribution to persons under no explicit or implicit restrictions with respect to disclosure of the contents.”

That seems to encompass Girlfriend.

If that is the case, since Girlfriend was under no duty to keep the contents of the letter private, the transmission of the letter from Boyfriend to Girlfriend equals publication.

Now, just because a work is published doesn’t mean that any recipient has an automatic right to reproduce the work. On the other hand, the recipient will have the right to disclose the contents.
But, lets get back to whether this use of the letter is “fair use.” If you saw the movie, The People v. Larry Flynt, you are probably familiar with one of the cases between Hustler and Falwell. But, there was a counterclaim in Hustler v. Moral Majority. In that case, Jerry Falwell took the infamous Campari ad and used it in a fundraising mailer. In holding that Falwell’s use was “fair use,” the court held:

[T]he court must also consider whether “the alleged infringers copied the material to use it for the same intrinsic purpose for which the copyright owner intended it to be used.” Marcus, 695 F.2d at 1175; Jartech, Inc. v. Clancy, 666 F.2d 403, 407 (9th Cir.), cert. denied 459 U.S. 879, 74 L. Ed. 2d 143, 103 S. Ct. 175 (1982) (same); see Italian Book Corp. v. American Broadcasting Companies, 458 F. Supp. 65, 70 (S.D.N.Y. 1978) (fair use generally sustained if defendant’s use not in competition with the copyrighted use). Under this principle, defendant’s use is more likely to be considered fair if it serves a different function than plaintiff’s.

In distributing the parody Falwell evidently meant to provoke the anger of his followers and to comment on the level of obscenity in the work.

I think that would apply here as well. More wisdom from the Hustler court.

The purpose of copyright is to create incentives for creative effort. Even copying for noncommercial purposes may impair the copyright holder’s ability to obtain the rewards that Congress intended him to have. But a use that has no demonstrable effect upon the potential market for, or the value of, the copyrighted work need not be prohibited in order to protect the author’s incentive to create. The prohibition of such non-commercial uses would merely inhibit access to ideas without any countervailing benefit. Sony Corp. v. Universal City Studios, 104 S. Ct. 774, 793 (1984)

And finally:

The court has carefully considered all the evidence placed before it in light of the factors set out in section 107. It concludes that the “‘equitable rule of reason ‘ balance,” Sony Corp., 104 S. Ct. at 795, tilts sharply in favor of a finding of fair use. Any other result would mean applying the copyright laws in an inflexible manner and ignoring fundamental considerations of fairness. The ad parody was a satire about Falwell. He was entitled to use it as he did.

Accordingly, I don’t think that copyright law would be all that useful to Boyfriend in an effort to suppress Girlfriend’s publication of his letter.

II. Invasion of Privacy
I don’t know which states are involved, and this could get complicated depending on where the letter was written, where it was sent, how it was sent, where it was received, etc. Invasion of Privacy is a state law claim, so there could be a very complex salad of claims and rules to sift through. But, lets dispense with the complications and get to some generalities: Invasion of privacy is really four separate torts:

1. Misappropriation – using another person’s identity for your own benefit: This probably doesn’t fit.

2. False Light — placing another in a false light before the public. Without seeing the letter and the web page, I can’t evaluate whether this fits. However, my guess is that it wouldn’t fit.

3. Intrusion — is the letter an unreasonable intrusion upon the seclusion or solitude of the boyfriend? I haven’t dug through too many cases on this, but I don’t think it would apply. This legal theory is more appropriately employed in a circumstance like CNN doing a story on a guy who has done nothing to bring the attention upon himself. An ex sharing a letter wouldn’t really fit.

4. Public Disclosure of Private Facts – Now we are getting warmer. I still don’t think it fits. This fits when something is disclosed to someone else, and there is a “reasonable expectation of privacy” in the fact being disclosed.

If we boil this down, and refer back to the copyright analysis, I think that Girlfriend could crush an invasion of privacy claim. Lets face it, would Boyfriend have complained if Girlfriend received the letter and then went out with her girlfriends, showed the letter to them accompanied by a squealing “that’s sooo sweeet!”??? No.

III. What could Boyfriend have done?

Lets presume that you want to know how you can keep your love letters private. If it can be done at all, it would be difficult, uncertain to work, and would purge every bit of romance from the process of writing and sending such a letter.

I suppose, theoretically, Boyfriend could have consulted with an attorney and provided the letter to Girlfriend inside an envelope upon which was written a license agreement. This agreement would make it clear that the contents of the envelope were for the sole use of the recipient of the envelope and its contents were not to be disclosed to any other person. Then, some language that would say “if you do not agree to these terms, you must return this envelope to the sender, unopened. If you do agree, you may demonstrate your assent to this agreement by tearing open this envelope.”

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