Volume 72, Number 6

December 1997

Copyright Protection, Privacy Rights, and the Fair Use Doctrine: The Post-Salinger Decade Reconsidered

Benjamin Ely Marks

This Note seeks to clarify the privacy protecting role of copyright that largely has been ignored in judicial decisions, if not in judicial decisionmaking, since the last revision of the federal copyright scheme. Thus, the Note reexamines recent jurisprudential analysis of fair use with regard to the use of unpublished materials, focusing in particular on those materials never intended for publication. It then proposes a modest but useful reform: judicial recognition of an explicit, privacy-based exception to the fair use doctrine.

Others have suggested greater recognition of privacy interests, but this Note’s proposal differs in several important respects. First, this Note explicitly distinguishes between unpublished materials intended for publication and unpublished materials not intended for public dissemination, because privacy interests are implicated only by the latter category. Accordingly, this Note argues first that the extra protection of an exception to the fair use doctrine should only extend to an author who has acted in accordance with the privacy interests she asserts with respect to the materials allegedly infringed. Second, this Note contends that only the author of unpublished materials, not copyright owners other than the author, should be able to object to the use of the unpublished materials on privacy grounds. Third, this Note suggests that the author should only be able to object during her lifetime, because her privacy interests diminish after death. These limiting principles help ensure a proper balance, on a broad scale, between protecting the interests of authors in the fruits of their intellectual labor and the interest of the public in ultimately claiming free access to materials essential to the development of society; and, on a narrow scale, between academic freedom and respect for personal privacy.