Unpublished Works

In regard to content that has yet to be published, the Supreme Court has said that "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)).

The following is a case example in which the use of an unpublished work was determined to be copyright infringement (i.e. not fair).

Unpublished Content
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J.D. Salinger, author of The Catcher in the Rye, sued Random House over Ian Hamilton's use of his unpublished letters in a biography on Salinger.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 The court determined Hamilton's use was not fair, noting that "[t]he scope of fair use is narrower with respect to unpublished works." Notably, four years later, Wright v. Warner Books, Inc. clarified that the use of unpublished works does not definitively constitute a copyright infringement ruling. In that case, despite the use of unpublished material, after weighing all factors, the court determined the use to be fair.