A client who is publishing a memoir recently asked if one should ask for permission to publish personal correspondence that one has received. I’m not a lawyer, but my gut feeling is that it’s better to ask for permission. I found a couple of articles that seem to support my view, even if the law regarding copyright isn’t clear in every aspect.
Mark Fowler is an intellectual property lawyer who wrote about this in “Sixteen Things Writers Should Know about Quoting from Letters.” Taking on the role of the letter writer, he explains that the recipient of the letter cannot “publish the entirety of the letter without my consent . . .” As the author of the letter, he retains the right of reproduction. The recipient owns the letter (the object) itself. That’s not the same as owning copyright.
Things get a little hazy in terms of quoting excerpts. Quoting a few lines from a letter is permitted under “fair use” law. But does that mean it’s OK to quote two lines or two paragraphs? Fowler says these distinctions are not clear. Still, he notes, “the number of words that you can safely quote is far smaller than the number you could safely quote from a longer work.”
In “When Do You Need to Secure Permissions?” Jane Friedman confirms that what constitutes “fair use” is a gray area. This seems to be because the relative importance of the excerpt—short or long—and the context in which it appears can make all the difference in a court of law. Friedman also provides brief guidelines for when you should seek permission, when you do not need to seek permission, and a very useful explanation of fair use.
You can find good information on the internet about permissions; but, inevitably, the writer will come across areas that seem vague. Again, I think it’s better to be safe than sorry: ask for permission.