Legal Question in Intellectual Property in California
publishing correspondence between corporation & consumer
As I understand it, letter-writers own the copyright in their letters, while recipients own the letters as property. If I engage in correspondence with a corporate representative about a product made by his company:
(a) can I publish that correspondence in a public forum (non-profit magazine)?
(b) if I change the name of the letter-writer (but keep the corporate name), modify the letters and then publish them as part of a parody (in which other fictional letters between the same parties are invented), are there still copyright issues?
(c) if I do either (a) or (b), should I be concerned about defamation? Assume that the letters discuss the company�s product in a mostly flattering way, but that the nature of the correspondence might hold up to ridicule the company�s policies.
If I cannot publish the letters without permission, then can you explain how magazines like Harper�s (in the Readings section) often publish such correspondence, including letters or internal memoranda? Should I assume that the magazine received permission to publish these letters � most of which are embarrassing to the author? Or are they publishable under some kind of fair use exception?
1 Answer from Attorneys
Re: publishing correspondence between corporation & consumer
Let me address your last question first. Magazines publish a disclaimer (often in the tombstone) stating clearly that any letter to the publication may be published and by writing the magazine the author gives such permission. Therefore, anyone who writes a letter to such a publication may expect it to be published and responded to in print. (Magazines and newspapers usually also include a caveat that they have the right to edit correspondence for length and clarity.)
Your understanding of the copyright of letters is generally accurate. And congratulations on understanding the subtle difference (that most people miss) between ownership and possession in intellectual property.
In order to give you an opinion, I would first want to know the facts of who you are writing to and the content of the correspondence. (And I would not give legal advice to a non-client.)
In general, if you want to lampoon a corporation and its policies, the range of freedom you have may depend upon the whether the issue is in the public eye or deals with a private matter or something that is of concern to you personally. My suggestion would be to change the name of the company and the individual if you plan such a parody.
On the other hand, if you are reciting actual correspondence, without embellishment or comment, and allow readers to draw their own conclusions, the defamation concern is significantly reduced. Generally speaking, truth is an absolute defense to libel (which is the type of defamation you refer to). If you are truthfully transcribing what someone has said (not adding to or subtracting from it), and truthfully transcribing the responses, you should be safe.
Discussions of products also raise trademark issues and ridiculing a company might raise trade libel, which has a much lower treshhold of proof of damages and should be avoided.
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