Thursday, July 28, 2005

Jennifer Anniston and Copyright

Who would have thought that Jennifer Anniston and copyright would appear in the same sentence? Recent press reports about a former beau's efforts to sell letters and memorabilia on eBay on July 29th raise the possibility of a copyright infringement suit. Lawyer (why oh why, to paraphrase Lyndon Johnson, does it have to be lawyer?) Michael Baroni is planning to auction off keepsakes from a summer of love in 1984, when he was 16 and she 15.

Among the keepsakes reported to be put up for sale (there's a $100,000 reserve) is a makeshift birthday card written on a piece of toilet paper. That's a fixation. (This evokes German composer Max Reger's brief letter to a critic who had savaged a work of his: "I am sitting in the smallest room in my house. I have your review before me. In a moment it will be behind me").

Letters have long been copyrightable, and Anniston retains copyright even though she parted with the physical object. J.D. Salinger, for example, was successful in suing a biographer over unpublished letters Salinger sent to others, including Learned Hand, and which were donated to libraries. But in Salinger there was a reproduction, whereas in Anniston's case there is only sale of the original. Sale of the original is permitted under Section 109, known as the first sale doctrine, but better described as the exhaustion doctrine since it applies to copies given away. This doctrine was judge made, out of a dislike for restrictions on alienation (not of affection, but of trade). Imaginative lawyers could, I guess, argue that the sale of her letters will contribute to others copying the work and hence gives rise to third party liability, but such other copying has not yet occurred, and hence there is no direct infringement, plus the same argument could be made against the sale of any physical copy.

This leaves state law, but here there are two problems: (1) any claim based on state law would have to survive preemption under Section 301, and (2) would have to actually present a cause of action under state law. Claims based on a fiduciary relationship or a confidential relationship are not preempted because the nature of that relationship is qualitatively different than a Section 106 right: that's why trade secret claims are preempted. But can teenagers in a summer fling be deemed to be in such an intimate situation? Time and the courts may tell.


Anonymous said...

Tying together some recent threads, she might not be able to stop the sale itself, but it seems she would be able to enjoin this ex-boyfriend from posting photographs of the material as part of the auction (which would likely handicap the process significantly).

William Patry said...

I understand from a friend this morning he has agreed to take it down. The issue of whether you can post a picture of an item you are selling on eBay is one our firm regularly faces.

Anonymous said...

And what's you're general opinion?

William Patry said...

I'll have to take the Fifth.

Michael Eisenberg said...

Posting a few photographs of a physical item on ebay that is lawfully being offered for sale is so clearly a fair use! It's not taking away from any market of the copyright holder; the amount used is only necessary to accomplish its purpose to inform possible buyers of what they're bidding on; the purpose is to inform potential buyers of a lawfully placed item for sale, what they are bidding on; although the nature of the work is not a work most commonly associated with fair use, it probably isnt a work congress was trying to promote in the first place, this factor would be neutral.

Anonymous said...

Does all this mean that one can not publish or sell letters sent to oneself from another person?

(as in the case of the orginator of the letters being a former spouse or boyfriend)

Is there an ownership of the communication ?

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