When creating new works (e.g., papers, presentations, articles, or books), researchers may wish to quote or reproduce manuscripts, letters, diaries, correspondence, reports and similar materials. These formats are frequently described as "archival" or "manuscript," primarily because they are unpublished in nature. Users of such materials should be aware that "unpublished" does not necessarily mean "uncopyrighted."
Unpublished works are protected by copyright law for a specified period of time. That protection can last longer than protection for published works. Consult a copyright term and public domain chart for more information.
The reproduction or publication of previously unpublished materials (including excerpts) may be considered fair use, but that determination can only be made on a case-by-case basis through a careful review of the four factors of fair use. Because the author/creator's right to first publication is strongly supported by the courts, fair use provisions may apply more narrowly to the reproduction of unpublished materials than to published works. If fair use or some other legal exception does not apply, the researcher will have to seek the author's permission to reproduce or publish the materials. (See court cases below for real-life examples.)
Researchers should be aware that institutions providing access to unpublished materials (e.g., manuscripts, archives, oral histories, photographs) generally have additional policies governing the reproduction and publication of materials from their collections. Reproduction of unpublished works may, for example, be subject to special restrictions imposed by the author, records creator, or donor. Before reproduction of any unpublished materials can be permitted, it is necessary to determine whether any special restrictions exist.
Researchers are encouraged to request information about reproduction in the early stages of their research. If reproduction is permitted, the institution's copying procedures (usually mediated) must be followed. If permission to reproduce is required, the institution may be able to provide researchers with information regarding ownership, as well as a description of basic procedures for seeking permissions. Ultimately, however, it is the researcher's responsibility to obtain all permissions and comply with the copyright law.
The courts continue to look to the four factors of fair use regarding unpublished works.
Salinger v. Random House (1987): the court ruled against Random House in their effort to make fair use of quotes from unpublished letters of the author J. D. Salinger.
Sundeman v. The Seajay Society, Inc. (1998): the circuit court ruled in favor of fair use when it found that a researcher from a non-profit foundation did not infringe by quoting from an unpublished literary manuscript in a paper presented at a meeting of a professional society. The court found this use to be consistent with statutory favored uses of comment and criticism.
Content in this page was used or adapted with permission from one or more institutions. Please see acknowledgements.