Awhile back, I had a posting about misuse in the manner in which a cease and desist letter was being used (link here). This turned out to be a web-wide controversy, which I won’t re-enter; recently though the author of the letter put out a press release touting a recent decision by a magistrate judge on the copyrightability of such letters. (see here). This press release has been challenged by Public Citizen and others (see here). Among other issues was the posture of the case, a Rule 12(b)(6) motion, and not, as my blog was about, misuse.
A February 1 opinion from the Western District of Louisiana also concerns letters, this time collections letters. Robison v. Cardiology Associates, L.L.C., 2008 WL 294488 (W.D.La. Feb. 1, 2008), Docket No. 05-1581. Here are relevant excerpts:
To disprove originality, Cardiology Associates argues that Robison copied from earlier letters in the public domain, that she added nothing of any significance to the collection letters already existing in the public domain, and that her letters do not contain any ideas, but rather are tools used to attempt to collect debts.FN5 FN5. This final argument is easily dispelled. Robison's letters clearly and concisely convey numerous ideas: an assertion that the recipient owes money to the sender; a request for payment; a non-threatening and cooperative approach to the debtor; and a threat of action adverse to the debtor if payment is not forthcoming. … Further, defense expert Dr. Perlman identified fifteen separate ideas in Robison's letters. … Robison is not claiming a copyright in these ideas, but rather in the particular way that she expressed the ideas in her letters-that is, the actual language that she used, which is subject to copyright. … Again, Robison's letters are contained in Record Document 65, Exhibit A. From her deposition testimony, it is clear that Robison had read other collection letters. But with her letters, she sought to create collection letters that achieved the goal of collecting the account, but were also sympathetic, unoffending, cooperative, and non-threatening. … According to Robison, she was “trying to give the patients options without making them feel threatened.” … In the letters, Robison expressed that the account is now due, we realize that you (the patient) have hardships, we realize that real life happens, and we are willing to work with you to settle the account. … Robison sought to achieve these goals with her terminology and phraseology. … Phrases from her letters include: • We regret having to take these measures and have tried working with you in order to clear this account. • We can at this time still make financial arrangements with you to clear the account and cancell [sic] legal procedures. • It is my intent to work with you and to set up a payment schedule that is reasonable and financially accepted to you. I do not want to cause any undo [sic] financial stress however this account needs to be taken care of. • Your account has been presented to me in order to try to establish [a] payment plan suitable to you and your financial obligations in order to clear the account. …. Here, the particular way that Robison chose to express her ideas, no matter if those ideas were in the public domain, is original to her. It required some degree of creativity on her part to select the language, terminology, and phraseology that she used to express those ideas. This expression is what plaintiff sought to protect via copyright. Even Dr. Perlman, the defense expert, stated that Robison's letters “contained ... some degree of creativity in the phraseology of the content of [the] letters” and that the author of such letters exhibited “at least a minimal degree of creativity” in creating the letters. Record Document 65, Exhibit D at 89-90.
Letters have long been protected under U.S. law, beginning with Folsom v. Marsh, 9 F. Cas. 342 (C.C.D. Mass.1841) (Story, J., riding circuit), which concerned President George Washington’s letters. An even earlier English decision involved letters of Alexander Pope and Jonathan Swift, Pope v. Curll, 2 Atkins 342 (1741). More contemporary disputes involved novelist Harold Norse, Norse v. Heny Holt & Co., 991 F.2d 563 (9th Cir. 1993); author Richard Wright, Wright v. Warner Books, 953 f.2d 731 (2d Cir. 1991); Scientologist founder L. Ron Hubbard, New Era Publications, ApS v. Henry Holt & Co., 873 F.2d 576 (2d Cir. 1989); and, J.D. Salinger, Salinger v. Randon House, 811 F.2d 90 (2d Cir. 1987). Like many works, the original creative efforts in letters can vary wildly, from cease and desist letters, to the Richard Strauss-Hugo Hofmannstahl correspondence, which seems to have been written from the beginning with an eye to publication, see here.
That a letter, or any work is protectible as a whole, says little about the scope of that protexted, fair use, or misuse.