Copyright Protection of Letters, Diaries, and Other Unpublished Works: An Economic Approach

ONE Of the more controversial questions in copyright law today concerns the proper scope of protection for unpublished works, such as letters, diaries, journals, reports, or drafts that the copyright owner may publish in the future. The question is not whether such works are copyrightable, for they surely are. Rather, it is whether such works should be given, as they are today, stronger copyright protection than published or widely disseminated works. Interest in this area of copyright law is the result of several recent and widely discussed cases. In Harper & Row v. Nation Interprises,' an unnamed source provided the Nation magazine with galleys of the soon-to-be published memoirs of Gerald Ford. Paraphrasing and quoting from the memoirs, the Nation rushed into print what it believed to be a "hot" article on Ford's decision to pardon Richard Nixon. Harper & Row had earlier sold prepublication rights to Time magazine for $25,000, but, after the Nation's article appeared, Time canceled its contract to publish excerpts from the forthcoming memoirs. In ruling against the Nation, the Supreme Court held that the unpublished nature of the work was a key factor negating a defense of fair use. Two more recent cases involved the rights of biographers to quote