Something to Chat About – Are Letters and Conversations Protected by Copyright?

I admit, I can never keep straight these categories of potential copyright protection. Ok, for the record, and so that I have something to look back at the next time I’m feeling utterly confused on the topic, here it is for once and for all (um, or at least until some higher court says otherwise).

Letters, lectures, speeches are all protected by copyright. See e.g. Salinger v. Random House, Inc., 811 F.2d 90, 94-95 (2d Cir. 1987) (author of letter owns the copyright in its contents, while the recipient of the letter retains ownership over the physical document); Jackson v. MPI Home Video, 694 f. Supp. 483 (N.D. Ill 1988) (Jesse Jackson’s speech at the 1988 Democratic Party Convention found protectable as a literary work).

Now what about simple conversations? Well, there my friends, I’m afraid the law is unclear. A conversation is considered something different from a lecture, which is generally written prior to its delivery. That is, just think of a politician at the podium absent a carefully crafted speech. Most of them would be as dumbfounded as say Dan Quayle or George Bush (Version II). I’m not counting Obama in this, of course. The man is a master orator. He’s also refreshingly intelligent.

In any event, the trend appears to be that conversations are not protected by copyright except in extraordinary circumstances. Like when, you ask? Well, the classic conversation case is Estate of Hemingway v. Random House, Inc., 23 N.Y.2d 341, 296 N.Y.s. 2d 771 244 N.E. 2d 250 (1969). In that case, the NY Court of Appeal stated that while there is a presumption that conversations are not copyrightable subject matter, there may be limited an special circumstances where that presumption may be overcome. Specifically, the court said that where the speaker indicates that he/she intends to mark off the utterance at issue from his/her ordinary stream of speech, and further indicates that he/she wishes to exercise control of the statement’s publication. Uh-huh, that happens all the time.

Other courts have taken a more narrow view of things (as if this were possible). See e.g. Falwell v. Penthouse International, Ltd., 521 F. Supp. 1204. 1207-1208 (W.D. Va. 1981) (“Plaintiff’s claim of copyright presupposes that every utterance he makes is a valuable property right. If this were true, the courts would be inundated with claims from celebrities and public figures all of whom may argue that their expressions should also be afforded the extraordinary protection of copyright. Such a result . . . would run counter to the firmly established constitutional guarantees of freedom of speech and of the press.”) E.g., a judicially delivered body slam with the implicit message: no!

So now that we’ve gotten this straight, we return to something important: a hot cup of coffee and looking for food in the office fridge.


Jonathan Pink litigates copyright, trademark and patent infringement cases in courts throughout the country. He also handles business litigation disputes and occasionally publishes cartoons worthy of the New Yorker (if only the New Yorker would agree). He can be reached at 949-223-7173.