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Published Content

"While even substantial quotations might qualify as fair use in a review of a published work or a news account of a speech that had been delivered to the public or disseminated to the press . . . the author's right to control the first public appearance of his expression weighs against such a use of the work before its release. The right of first publication encompasses not only the choice whether to publish at all, but also the choices of when, where, and in what form first to publish a work." Harper & Row v. Nation Enter., 471 U.S. 539, 564 (1985).

Example

Salinger v. Random House, Inc., 811 F.2d 90 (2d Cir. 1987) - J.D. Salinger author of The Catcher in the Rye, sued Random House for author Ian Hamilton's use of unpublished letters between Salinger and various individuals in a biography of Salinger. Hamilton gained access to the letters through academic libraries to which the recipient had donated the letters. Each library made access to the letters "subject to observance of at least the protections of copyright law." The court determined Hamilton's use was not fair, noting that "the scope of fair use is narrower with respect to unpublished works."