Who Owns Love Letters and Other Questions

February 17, 2015

Readers send me the most interesting questions, many of which I need to sit back and consider. I enjoy these questions and want to share them. I figure many writers have similar questions.
Here are some of my favorites:

http://www.dreamstime.com/royalty-free-stock-photos-woman-evening-dress-hidden-weapon-image8429678Question: I’ve been enjoying your blog and I have a question. I have set my mystery novel in Ithaca, NY and used real businesses such as restaurants for the settings. Do I need the owners’ permission? I have a murder take place at one restaurant.

Answer: Whether you need permission is a question of degree. If a business is mentioned in passing, then permission isn’t required (but it never hurts). However, some attorneys recommend you refrain from using a trademark, such as a business name, in a disparaging way.

I would definitely get permission before you place a murder in a restaurant. It could be seen as a false statement of fact and potentially defamatory. The restaurant might be happy to give permission and enjoy the exposure. Then again, they may take offense.

If they won’t give permission, then I suggest you make up a name.

Question: At a recent conference I asked a workshop leader (also an attorney) this question and was shocked at the answer.

I am writing a memoir about a love affair I had when I was young, and it quotes liberally from letters written to me by my lover. The workshop leader said these letters absolutely don’t belong to me and that I must have permission to quote them. I thought that things given to me become my property.

http://www.dreamstime.com/royalty-free-stock-photography-pink-rose-flowers-over-antique-handwritten-letter-romantic-vintage-background-selective-focus-image39674437Answer: Sadly, the attorney is correct. On an emotional level, I agree with you that letters are gifts, but the law takes a different view.

The physical letters belong to you, but your ownership of the letters does not give you the right to publish the words in the letter. The copyright to the words, and the exclusive right to publish those words, belong to the writer, your ex-lover.

This question has been the source of some legal battles, typically when the letter writer or letter user is famous and the publication of the letters generates some money.

Question: I’m going to be publishing my first novel this May and something occurred to me. In one scene, a character tells another character a joke. I wrote this joke specifically for the book. However, once I publish, I’m concerned someone might say that they’d written this joke, or one very similar, and claim some sort of infringement. Is there anything I can do to help prove that I wrote the joke on my own for the book? Kind of an odd question, hope you can help.

Answer: It’s not an odd question at all. It’s not uncommon for people to create similar writings, but independently. Same with photos. Here’s an interesting post about photos.

You do not have to prove that you wrote the joke independently. The other side has the burden of proving that you copied their work. And proving copyright infringement of something like a joke would be a tough case for them to win.

First, in order for someone to win an infringement action, they would have to demonstrate that the original materials were protected by copyright. Short jokes are not typically protected, particularly if they are obvious.

Next, they would have to show you had access to the material and copied it. Copying can be shown if there is so much similarity that independent creation seems unlikely (as decided by a jury). The classic example is when typos from the original work also show up in the allegedly copied work.

Proving infringement is complex and complicated, as this piece about a case involving Six Feet Under discusses.

Question: Hello Helen, I listened to your podcast at The Creative Penn and I just have one question that bugs me to no end. I’m a new author and was just wondering do I really have to wait until I get my certificate from the government of the copyright in order to start selling my book? The wait just kills me when I just want to get my book out for people to read! Please help me!

Answer: First, I am assuming you are in the U.S. If you’re not, let me know, but I suspect the answer will be the same.

You do not have to wait at all. You can publish and release your book BEFORE you register your copyright. But it’s best to register your copyright within three months following the release of your book; you’ll have more remedies in the event someone infringes on your work.

Question: I just finished reading a memoir and was surprised to find so many names mentioned under least than desirable circumstances. In one description of a boyfriend, giving specifics that if not made up would identify him, she calls him stupid and tells how he rifled his friends wallets for cash. I find that hard to understand that if this is true, how can she get away with publishing it without getting sued? Or do the big publishers have lawyers who can vet the specifics?

Answer: Keep in mind that nothing is completely safe until a judge decides it is. But generally, you may name names in your memoir or other book. Defamation is an UNTRUE statement of FACTS which tends to harm an identifiable and living person’s REPUTATION, not ego or feelings. When it comes to factual information, stick to the truth. The more proof you have, the better.

If you will be disclosing private information, then research whether that information has been made public in court documents, news reports, even family gossip. If the information has been made public, then there is less risk someone could claim (successfully, at least) that you disclosed private facts.

The false statement or disclosed private information needs to be more than embarrassing. Generally, it needs to imply criminal, deviant, or professionally incompetent conduct. Portraying someone as a jerk of a boyfriend, or an insulting mother-in-law, or an obnoxious boss is not likely to be considered defamation or an invasion of privacy.

The issues get complicated, and there is no clear line between safe and defamatory. Publishers do put their manuscripts through legal review, particularly if there is anything in the work that makes them nervous. They also carry media risk insurance.

If your manuscript has some risky material, it’s worth the investment to have those portions reviewed by an experienced publishing attorney.

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8 responses to “Who Owns Love Letters and Other Questions”

  1. Richard Marcott says:

    I bought an original painting of a ship directly from the artist at a street fair. Now I would like to take a photo of my painting to use in my memoir as a frontispiece. Can I do that without express permission from the artist?

  2. Richard Marcott says:

    After numerous failed attempts to locate the artist ( google search, alphabetical list of artist in 1976, and Picasso art club locator. With no results. How much due diligence effort is needed before I just use the picture and hope that if he’s out there–he’ll respond and say OK

  3. Richard Marcott says:

    After many attempts to locate the author–when have your reached due diligence in your search and just publish it? What kind of evidence do I need to prove I tried?

    • Richard, there are some published “best practices,” particularly for academic research and publication, that discuss when enough is enough. Take note and save screen shots showing that your searches were unproductive.

  4. Regarding ownership of letters — what if the person who wrote the letter is dead?

  5. Kris Kerzner says:

    What if the letters were written prior to 1977, and both correspondents are now deceased? I’m hoping to make use of a direct quote from one letter, which has been published in a biography of the writer, while imagining the rest of the correspondence. Thank you for your help.

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