Memoir Writers Editing and Proofreading Services

Representations and warranties is a section of the Authors Guild's model trade book contract, and that section asks a memoirist for a promise the copyright statute never asks for. One clause warrants that the work "contains nothing that violates any right of privacy, is defamatory, or infringes" or otherwise violates any intellectual property or other right of any kind of any person or entity.¹ The same clause goes on to reach material that is unlawful or deceptive.¹ A later section asks the author to "indemnify and hold harmless Publisher and Publisher's licensees" against losses arising from a claim resulting from a breach of those warranties.² Nothing in the copyright statute's sections on fair use, on ownership, or on duration asks an author to promise anything.³⁴⁵

The Guild's commentary marks that clause as the fairer version rather than the usual one. The Guild's model adds the phrase "to the best of Author's knowledge," unlike most publishers' standard contracts.¹ The alternative, the commentary says, forces an author to act as the publisher's insurer against such claims.¹

The sentence Congress added in 1992

Section 107 names criticism, comment, news reporting, teaching, scholarship, and research among the purposes for which use of a copyrighted work may be fair, and it sets out four factors to be considered.³ It closes with a sentence that is not in the original 1976 text. "The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."³ That sentence arrived as Public Law 102-492, enacted October 24, 1992 and printed at 106 Stat. 3145.⁶

The addition matters more to memoir than to most genres, because the documents a memoirist works from are unpublished almost by definition. A letter, a diary, a school report, and a hospital discharge summary are all unpublished works in the copyright sense, whatever else they are. The sentence does not say that unpublished status is irrelevant. It says that unpublished status does not by itself decide the question.

What the courts had said, and what they said afterward

The Supreme Court decided Harper & Row v. Nation Enterprises on May 20, 1985. The opinion describes the unpublished nature of a work as "[a] key, though not necessarily determinative, factor" tending to negate a defense of fair use.⁷ It also states that "under ordinary circumstances, the author's right to control the first public appearance of his undisseminated expression will outweigh a claim of fair use."⁷

The Second Circuit applied that language to letters in Salinger v. Random House, decided January 29, 1987. The biographer located "most, if not all," of the letters in the libraries of Harvard, Princeton, and the University of Texas.⁸ They had been donated to those libraries by the recipients or their representatives.⁸ The court reversed the denial of a preliminary injunction and remanded with directions to issue one.⁸ The people who held those letters were their recipients, and the writer was somebody else.

The same court reached the opposite result in Wright v. Warner Books on November 21, 1991, affirming summary judgment for a biographer and her publisher, who had used Richard Wright's unpublished letters and journals. "Neither Salinger, Harper & Row, nor any other case, however, erected a per se rule regarding unpublished works," the opinion states.⁹ It continues that "the fair use test remains a totality inquiry, tailored to the particular facts of each case."⁹ Congress wrote its own sentence into section 107 the following year.

What the Copyright Office still tells the public

The Copyright Office maintains a Fair Use Index, and its summary of the second statutory factor carries a line worth reading beside the 1992 amendment. "In addition, use of an unpublished work is less likely to be considered fair."¹⁰ The Office also states on the same page that it "is unable to provide specific legal advice to individual members of the public about questions of fair use."¹⁰

Those two statements sit in different registers. One is a statute saying a fact is not decisive on its own; the other is an agency's plain-language summary of how the factor tends to run. A memoirist reading only the second would conclude that quoting a grandmother's letter is close to barred. A memoirist reading only the first would conclude that it is close to free. Which reading applies to a particular passage is a question for the author's own attorney.

The paper and the words have different owners

The statute separates the two forms of property in one sentence. "Ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied."⁴ The box and the letters inside it are the material objects, and the sentences on the paper are the work.

The University of California Press states the consequence in its own guidance to authors. That guidance says unpublished letters "present particular problems."¹¹ It continues that "the writer of the letter (or the writer's heirs) normally controls the publication rights even if the physical letter is in the possession of another person or in a library archive."¹¹ That guidance also places responsibility for complying with "copyright, privacy, and libel laws" on the author.¹¹

Duration is where family papers become difficult rather than merely inconvenient. Copyright in a work created on or after January 1, 1978 endures for a term consisting of the life of the author and 70 years after the author's death.⁵ For a letter whose writer's date of death is not known, the statute supplies an administrative route rather than a research project.

Any person having an interest in a copyright may record a statement of the date of death of the author with the Copyright Office.⁵ Another provision then supplies a presumption. After 95 years from first publication or 120 years from creation, whichever expires first, a person may obtain a certified report from the Office.⁵ That report may disclose nothing to indicate that the author is living, or that the author died less than 70 years before. In that case the requester is entitled to a presumption that the author has been dead for at least 70 years.⁵

A person the manuscript does not name

The warranty quoted at the top reaches privacy and defamation, and neither subject appears in the copyright sections cited above. Identification of the person described is one question inside each of them. Two decisions from California courts show what the words in a manuscript have to do with identifying a person.

In Flynn v. Higham, decided December 9, 1983, Errol Flynn's children sued over a biography of their father. The California Court of Appeal stated the rule in one sentence, taken from an earlier California decision. "Defamation of a deceased person does not give rise to a civil right of action at common law in favor of the surviving spouse, family, or relatives, who are not themselves defamed."¹² The court also declined to allow a claim for intentional infliction of emotional distress on the same facts. Allowing such a claim, it reasoned, would let plaintiffs "do indirectly that which they could not do directly."¹²

The other decision concerns a person whose name was changed. In Bindrim v. Mitchell, reported at 92 Cal. App. 3d 61 and decided in 1979, a novelist had changed the name and the physical description of a psychologist whose sessions she had attended. The court stated the test as "whether a reasonable person, reading the book, would understand that the fictional character therein pictured was, in actual fact, the plaintiff acting as described."¹³ It modified the judgment and otherwise affirmed it.¹³ As modified, a compensatory judgment ran jointly and severally against the novelist and her publisher, and a separate punitive judgment ran against the publisher alone.¹³ That is one California appellate decision from 1979 rather than a national rule, and it is cited here for what the court said about identification.

The list an editor can build

Nothing a client sends us is shared. Whether a use is fair, whether a passage is defamatory, and whether a living person would be identified are questions for the author and the author's attorney, and we do not answer them. The Editorial Freelancers Association lists research and fact-checking separately from editing. Copyediting, on its definitions, "involves correcting spelling, grammar, usage, and punctuation, checking cross-references, and preparing the style sheets that guide consistency and accuracy across the manuscript."¹⁴ Fact-checkers "review a manuscript and confirm the veracity of each statement that is claimed as an assertion of fact."¹⁴ The same page describes that service as a deeper level of scrutiny than the incidental fact-checking which may occur during editing.¹⁴

What we work on is the manuscript. Quoting a letter and reporting what the letter said are two different acts on the page, and only one of them reproduces the writer's expression. A draft that moves between the two without marking which is which is hard to review later, by anybody. We mark every passage that reproduces someone else's words rather than summarizing them. We record its length and the date on the document it came from. We note where the same person appears under two spellings or under two descriptions.

That produces a table rather than a manuscript. An author reviewing a warranty clause with an attorney has something to read that is a few pages long, organized by chapter, and keyed to the pages the passages sit on. The alternative is a search through the whole draft carried out by somebody who is being paid by the hour to do it. We do not clear permissions, trace an heir, or read an estate file.

The choice between quoting a letter and reporting its contents is usually made for reasons of pace. A quoted paragraph slows a chapter and introduces a second writer's voice, while a summary keeps the narration in the author's own. The second set of consequences is not visible while the drafting is going on, and it becomes visible when the quoted passages are gathered in one place and counted.