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Who Is the Owner of the Written Word? : Publishing: Recent court rulings make it harder for biographers to quote from a subject's writings. The problem: copyright infringement.


Imagine that a biographer is rummaging through an old trunk. He discovers a previously unseen letter from George Washington to Martha. He unfolds the brittle pages.

"Martha, I must tell you, I was fibbing when I said, 'I cannot tell a lie.' "

When that hypothetical biography is published, will you, the book buyer, get to read the Founding Father's confession?

Hard to say.

Last month the Supreme Court refused to review an appeals court ruling that copyright law strictly limits the ability of authors to quote from unpublished materials. That case concerned a biography of the man who founded the Church of Scientology. As a result of that decision, a vociferous contingent of biographers, historians, journalists and their supporters say they are shackled in their efforts to portray a person's life accurately.

Already, a movement to persuade Congress that copyright laws must be changed is gaining momentum. In the meantime, authors say they are wobbling along on thin legal ice.

"The Scientology case was a great sadness; it's not going to help the writing of history," said Arthur Schlesinger Jr., the author of a three-volume biography of Franklin Roosevelt. If current law had existed when he was writing the highly acclaimed books, he added, he would have had to delete numerous important quotations.

At the heart of authors' concerns is the question of "fair use," generally considered the murkiest area of copyright law, which protects any written material, from a Henry James masterpiece to a memo spray-painted on a plywood construction barrier.

The Copyright Act was initially enacted to "promote the useful arts" by assuring authors the exclusive rights to their creative products. But judges realized early on that art has always, to some extent, been built upon and borrowed from other art. To assure that this aspect of creativity not be stifled, a "fair use doctrine" evolved in the courts.

The first legal dispute concerning fair use occurred in an 1841 case involving letters of George Washington. The issue reared its head most recently on Feb. 20, when the U.S. Supreme Court refused to review a 2nd District U.S. Court of Appeals decision on the Scientology book.

The appeals court ruling stated that unpublished materials "normally enjoy complete protection" from being quoted and that courts should as a rule stop the publication of books that quote "more than minimal" amounts of such unpublished material.

That case arose when lawyers for New Era Publications International, an affiliate of the Church of Scientology, sued publisher Henry Holt & Co. in 1987 to prevent the publication of "Bare-Faced Messiah," a biography of Church of Scientology founder L. Ron Hubbard. The book's author, Russell Miller, had quoted 132 passages from unpublished letters and documents, many obtained from government agencies under the Freedom of Information Act.

Holt lawyers argued that the passages were essential to painting a complete portrait of Hubbard as a bizarre and often dishonest messianic figure. They thought such quotations were clearly protected under the fair use doctrine.

The appeals court disagreed, finding that 41 passages involved copyright infringement. It refused to stop publication of the book, but only on a technicality.

Authors were outraged by the decision, and various organizations including the Assn. of American Publishers and the American Historical Assn. filed briefs urging the Supreme Court to overturn the decision. The court refused.

The decision came on the heels of several similar rulings. In 1987, for example, the same appeals court ruled that novelist J.D. Salinger could, under copyright law, prevent the publication by biographer Ian Hamilton of a book containing quotations and paraphrases from 70 unpublished letters by Salinger, many found in research libraries.

In both cases, it was U.S. District Court Judge Pierre N. Leval's decisions that were overturned. In a speech delivered last April at New York University Law Center, Leval bemoaned the complexity and confusion in the fair use doctrine. He went on to criticize the appeals court for failing to give weight to the educational or "public enriching" value of quotations when deciding issues of fair use.

"They accord no recognition to the value of accurate quotation as a tool of the historian or journalist," he writes. "A biographer who quotes his subject is considered simply a parasite, a free rider."

Leval used the Salinger case in his speech to make a point about the dangers of restricting fair use.

After the court ordered certain quotations removed from the Salinger book, the biographer went ahead and characterized the content of the letters himself, Leval pointed out. A reviewer, who had also seen the letters, then lashed out at the biographer for having an entirely different interpretation of the letters than his own.

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