Newspapers, letters to the editor and copyright

[Garfield226]

I should know this, but I don’t – I have an intuition, but we all know how dangerous those can be.

A letter-writer retains copyright to his letters (i.e. copyright is not transferred to the recipient), according to Cecil. Normally, when you write a letter to the editor of a newspaper, there is, I would guess, implied consent for them to publish it.

However, some folks want to write in and rant, and have it not go in. These usually contain “NOT FOR PUBLICATION” at the top of the letter. If a paper, either deliberately or unintentionally published one of these, my intuition is the letter-writer would have a copyright infringement case against the paper. But I may be wrong. What’s the answer?

Related: Newspapers sometimes publish emails or letters or memos written by state and local government officials in the course of investigations and things. I know that the federal government is not allowed copyright protection on works it creates, but state and local governments can be. My intuition here is also that a state or local government would have a claim, yet I don’t recall ever hearing a case like this.

[Otto]

IANAL but it seems to me that the newspapers would have a pretty clear fair use defense for publishing copyrighted memos and emails in the course of reporting the news.

As far as inadvertantly publishing some kook letter that the kook didn’t want published, even if the kook has a claim, what are his damages?

[Rhythmdvl]

@Otto

[W]hat are his damages?

It’s not hard to imagine a scenario – a business person writing what they think is off the record could lose income, a celebrity could lose contracts/endorsements, etc. Or perhaps an author would have used that one, golden, perfect sentence as the final thought in a book?

[Exapno_Mapcase]

Copyright infringement is its own damages, so to speak. The act itself is the crime.

It’s thrue that only statutory rather than punitive damages can be claimed if the work was not registered. Even so, the damages can be substantial if the infraction was willful.

17 U.S. Code § 504 - Remedies for infringement: Damages and profits

(b) Actual Damages and Profits.— The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages. In establishing the infringer’s profits, the copyright owner is required to present proof only of the infringer’s gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.

(c) Statutory Damages.—
(1) Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work.
(2) In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000.

[Otto]

@Rhythmdvl

It’s not hard to imagine a scenario – a business person writing what they think is off the record could lose income, a celebrity could lose contracts/endorsements, etc. Or perhaps an author would have used that one, golden, perfect sentence as the final thought in a book?

My comment was in response to the notion that a kook sends a kook letter to a newspaper not wanting it published and it gets published anyway. I find it hard to believe that the kook can demonstrate any actual damages suffered as a result of the infringement. Statutory damages perhaps, very minimal ones, but no actual damages.