We’ve been discussing the publication of a number of “love letters” from a World War II sailor to his wife back home in San Francisco. The letters from Claude Everett Dawson to his wife Nadine Henry Dawson were discovered in a trash bin in Grass Valley, Nevada County, California, a Sierra foothills community. The local newspaper, The Union, has published several of the more than 100 missives and has stated an intention to return the letters to a family member of the Dawsons, if one can be found. A group of genealogists and others, including GeneaBlogie, have weighed in with volunteer research to help locate a family member.
In the comments to our last post about this, Apple, who writes the fine New England blog, Apple’s Tree, queries:
. . . . Should the paper be publishing these letters? With my current project I’m not publishing anything written by someone who hasn’t been dead at least 70 years. If they don’t know who the heirs are, who holds the copyright?
An excellent question, Apple. Indeed, several readers of The Union have expressed similar concerns, though not as eloquently as Apple did. For example, a reader who goes by the name “consarned citizen,” called the publication a “bizarre and cruel activity,” taking the newspaper to task thusly:
Shameful exploitation of the private thoughts of two people who were not writing for publication, who may never have lived in this area, who are dead (and whose immediate heirs might have died of old age).
Another reader of the paper, “nclover,” said simply: “Put the letters back in the trash where you found them.” But reader “havetosayit” compared the letters to the posthumously published letters of great historical figures such as Vincent van Gogh or W.E.B. DuBois. “In my opinion, these letters are a very interesting way of seeing the WW2 era through one sailor’s view,” this reader commented.
Well, what about it? Obviously, there are legal and ethical issues here that the newspaper must have confronted. Let’s look at the legal issues first.
To whom do the letters belong? The publisher of The Union says, “The letters belong to [the Dawsons] and, if they are gone, to their survivors . . . .” That may or may not be correct. I think ownership of the physical letters may depend on how they got into that trash can. Suppose they had been stolen and the thief, regarding them of no value, discarded them? From whom were they stolen and did that person have a legal right to ownership? Or suppose before their deaths in 1994, Claude and Nadine instructed someone to discard them at a certain place and time. Maybe Claude and Nadine by their wills gave such an instruction. Or suppose that after Claude and Nadine died, the letters were found by a family member who threw them away? Maybe the letters were specifically bequeathed to a particular family member or someone else who no longe wanted them and tossed them out for that reason.
The newspaper seems to be operating on the assumption that the letters were discarded inadvertently, which is not an unreasonable assumption; it just might not be true. And there is no evidence at this point to say for sure. In that case, the newspaper may be acting reasonably to try to find a potential owner. But is publication necessary to do that? Another good question.
If the newspaper believes that it does not own the letters, why is it acting as if it does by publishing them without the permission of the owner? That may be more of an ethical question than a legal question.
Generally speaking, the law regards things that have been intentionally discarded as “abandoned” and anyone may claim such property. Is the newspaper acting on that principle? If so, why does it care who the letters used to “belong to”?
Which brings us to teh copyright question. Mere ownership of the phyical objects does not mean onwerhsip of the copyright. The letters were created between 1943 and 1945. The Copyright Act of 1909 was in effect then and it was much different than copyright law of today. The old law placed great emphasis on publication and registration and formalities such as where and how the (c) symbol appeared. Copyright terms were 28 years with the possibility of renewal for another 28 year term. The technical requirements of the 1909 Act have mostly been eliminated by the current Copyright Act of 1976 and its 1992 and 1998 amendments, as well as by a treaty called the Berne Convention.
Under the 1909 Act, a work could acquire statutory protection by publication with the required formalities of notice or if unpublished, by registration with the Copyright Office and deposit of a number of copies as required by statute. Generally, any work not so protected by the 1909 Act passed into the public domain under the terms of the 1976 Act. [There are some other issues here, so if you have a problem involving such a work, consult a copyright lawyer].
The point is that Claude’s letters are probably in the public domain. The newspaper has no problem under copyright law publishing the letters.
[Law Lesson: Why is Apple referring to 70 years above? Answer: The 1976 Act generally protects works for the life of the author plus 70 years.]
What about invasion of privacy? Well, Claude and Nadine are dead–their right to privacy in this sense went with them. There are other people mentioned in the letters, however. The newspaper is perhaps calculating that (1) none of them are sufficiently identifiable from the letters alone and (2) they’re probably dead anyway; both good bets!
Apart from the legal aspects, what about the ethical issues?
Craig Manson is an active member of the California State Bar. In addition to the California courts, he is also admitted to practice before the United States Supreme Court and various other federal courts. He does not currently practice copyright law. The information in this article is intended for educational purposes only and is not a substitute for legal advice. If you have an actual legal problem, consult a lawyer in your jurisdiction.
September 4, 2008 Thursday at 10:29 pm