BIO, Other Organizations Issue Statement on Fair Use

By Kai Bird

Perhaps a biographer’s worst nightmare is to be told by his or her publisher’s lawyers that he or she cannot quote from all those colorful diaries and letters and must instead rewrite his or her manuscript so as to only paraphrase or summarize these sources. This happened to Ian Hamilton in 1986, when he was sued by the subject of his biography, J. D. Salinger. Random House compelled Hamilton to rewrite his book, taking out all the quotes. Salinger wasn’t satisfied with even the paraphrased use of his letters and sued Hamilton and his publisher. The courts eventually ruled in Salinger’s favor—a case that made very bad law for biographers and historians. Congress amended the Copyright Act in 1992, explicitly allowing for a “fair use” publication of unpublished works, such as diaries and letters. But ever since the Salinger case, editors and publishers have been overly cautious in dealing with fair use cases. Over the years, the courts have in fact moved away from the draconian implications of the Salinger case.

Biographers International Organization, the New York University Biography Seminar, and the Leon Levy Center for Biography have now adopted a statement on good practices for biographers dealing with fair use issues. The statement was drafted by BIO members Carl Rollyson, Anne Heller, and Kai Bird in consultation with several legal scholars and lawyers representing a number of New York publishers. You can read the statement here.

Kai Bird is the executive director of the Leon Levy Center for Biography and a BIO board member. He is currently working on a biography of Jimmy Carter.