12 February 2005

From the World of Books

First up, we have an author lamenting a nasty book review. I'm not entirely certain how earnest the review really is, but it seems to zoom between hurt feelings and self-deprecating humor at such speed that I don't think the author is, either. In any event, he closes with the only really useful advice one can give the author of a bad review:

In the end, the only useful lesson was a simple one: As a writer, I have to accept the lack of control. Publishing a book is like having a child. You can do everything right — feed him, clothe him, show him Baby Kierkegaard videos — but a bully at kindergarten can still make him eat clumps of dirt. You have to come to terms with that. And you have to appreciate that your child is able to run around the playground at all, and is even having fun on the jungle gym when not being pummeled. Oh, and you can make sure the Amazon ranking for the bully's new book is much, much lower than yours. Which it is.

Then we find some depressing lessons for biographers on copyright—lessons that I've had to educate four different clients on in the last year. The trigger this time is an article concerning an individual who wanted to publish a book of James Baldwin's letters. Unfortunately, it appears that neither that author nor Baldwin's heirs get it.

Literary estates make decisions for their own reasons, and biographers have to accept that they are made in good faith. The executor of the Baldwin estate, the writer's sister Gloria, allowed me to quote from certain other unpublished or little-known writings, such as a precocious adolescent poem, "Black Girl Shouting", and his unproduced screenplay of Giovanni's Room. Anything that Baldwin intended for public consumption was available, she explained, whether or not it had reached the public arena. Whatever was meant to be private — down to a skittish note to Cole — was to remain so. Put like that, it sounds reasonable, even to me; but when Baldwin's official biographer and old friend David Leeming squared up to his task, bearing his subject's signed note of authorisation (I've seen a copy), he too was refused permission to quote from letters, including those written to him.

What is saddest about this particular article is that the author isn't a copyright ignoramus, like so many who profess on copyright policy. He actually appears to understand what Salinger v. Random House means (although he later overstates the meaning of the Richard Wright matter).[1] Then, too, he's relying on case law later explicitly overturned by amendments to § 107 that require application of the fair use factors to unpublished works… which essentially cuts most of the reasoning in Salinger off at the knees.

The article is a lament against a past that has since been reformed. Although the truth that a letter is actually three pieces of property—a pile of ink on paper; an authorized copy of a copyrighted work; and a copyright in its contents—of which only the first two are transferred to the recipient (the copyright remains with the writer) is one that more authors should understand, this does not constitute an absolute copyright bar to quoting anything from that letter. Instead, one must go through the four fair use factors for each letter—not, as some authors' and celebrities' estates assert, for the body of letters as a whole—to determine whether a biographer's quotations are fair. I'm afraid that Mr. Campbell completely missed the boat on this; and the irony that his article was published in the Guardian—remember, "fair dealing" in Britain is judged under completely different standards than is "fair use" in the US—only increases its inaptness.

  1. Wright v. Warner Books, Inc., 748 F. Supp. 105 (S.D.N.Y. 1990), aff'd on different reasoning, 953 F.2d 731 (2d Cir. 1991).