As Page Putnam Miller reported in the January issue of Perspectives, on November 21, 1991, the Second Circuit Court of Appeals decided a copyright case that may broaden the right of scholars to quote unpublished materials. The AHA and other scholarly organizations submitted a friend-of-the-court brief in this successful case. As reported earlier in Perspectives (Michael Les Benedict, "Copyright I: Fair Use of Unpublished Sources," Perspectives 28 (April 1990), 1, 9–13), the Second Circuit Court of Appeals, the circuit court with the greatest influence over copyright law, has over the past five years taken an extremely restrictive view of the circumstances in which the quotation of unpublished copyrighted material constitutes fair use, permitted under the Copyright Act of 1976. The court's decisions have forced the AHA and other scholarly organizations to press Congress to declare expressly that copyright in unpublished manuscript material is subject to the same fair use as published materials.

As scholars continue lobbying Congress, the Second Circuit Court of Appeals may finally be softening its hard line. The court's doctrine has been so restrictive that until recently it had yet to find any quotation of unpublished material to have been a fair use. Only once did the court find for the defendant in such a case, and it did so because it found the plaintiff had acted in bad faith rather than because the quotation consituted fair use. New Era Publications Int'l, ApS v. Henry Holt & Co., 873 F. 2d 576 (2d Cir. 1989).

But in the recently decided case of Wright v. Warner Books, Inc., 1991 West Law 244294 (2d. Cir. 1991), the Second Circuit Court at last found an instance in which quotation of unpublished materials constituted fair use. The case involved the effort of the widow and literary heir of Richard Wright to prevent Wright's old friend Margaret Walker from quoting or closely paraphrasing letters Wright sent her years ago, in a biography of Wright she published with Warner Books. The district court held Walker's use of the unpublished letters to have been fair, and the circuit court sustained the decision. Wright v. Warner Books, Inc., 748 F. Supp 105 (S.D.N.Y. 1990).

Evaluation of whether a use of copyrighted material is fair turns primarily on four factors: (1) the purpose and character of the use, (2) the nature of the copyrighted work being used, (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and (4) the effect on the potential market for the copyrighted work. Courts evaluate whether each factor weighs in favor of the plaintiff copyright owner or the defendant user and then come to a general determination.

In the district court case, the judge found that the quoted material was so factual in content and so ordinary in expression that even factor two supported the defendant. Scholars and their representatives were cheered by this result, but many were less happy with the circuit court opinion, even though it sustained the lower court decision. They were concerned because the appeals court treated even some of the mundane quotations as "borderline expression" of Wright's literary skill, reiterated that the unpublished nature of quoted material weighs heavily against a claim of fair use, and therefore found the second factor to weigh against Walker and Bantam Books.

However, if scholars' lawyers use it properly in future cases, the Wright case could turn out to be a significant victory. In previous cases, the court seemed to find the unpublished nature of quoted material to have been the crucial consideration in determining whether its use was fair. Although analysis of fair use was supposed to involve consideration of at least the four factors specified above, in reality the unpublished nature of the copyrighted work overrode all the others.

In its decision in Wright v. Warner Books, the Second Circuit Court of Appeals for the first time makes clear that the nature of the quoted work is only one factor to be considered. Although the court held that the second factor—the nature of the copyrighted work—weighed against the defendants, it nevertheless found the use fair because the other factors weighed so heavily in their favor. This may in fact render the appellate court decision more favorable to scholars than that of the lower court.

The district court's decision probably would have been construed to mean that the unpublished nature of the quoted material remained the overriding consideration, with such material fairly used only when it is very limited and mundane. Since scholars generally make use of more expressive and less mundane quotations than Walker did, their use would have remained very vulnerable to challenge.

The circuit court decision should help scholars by increasing the attention paid to the other factors. At least two of the other factors—the purpose of the use and the effect of the use on the market for the quoted material—will usually weigh heavily in favor of scholars. Thus, if scholars limit the amount and substantiality of the material they quote in relation to the sources from which it is drawn, they ought to have a better chance of withstanding a copyright challenge than they would if the issue turned primarily on whether the quoted material was mundane or expressive.

However, the impact of a court decision often turns on how lawyers and judges understand it. Much will depend on case notes published in law reviews, the approach lawyers take towards the Wright case in future legal briefs, and the construction the court places upon the Wright decision in its next case on the subject. If legal analysts miss the significance of the circuit court's opinion, merely perceiving the decision as an unusual exception to the rule that unpublished material is generally not subject to fair use, scholars will miss the opportunity the case provides for establishing a reasonable construction of fair use of unpublished materials.