1. In the United Kingdom, as a result of the Civil Procedure Rules 1998, the term ‘claimant’ has replaced plaintiff for the purpose of court proceedings. In this article, ‘claimant’ has been used throughout, even where, at the time when a particular decision was made, ‘plaintiff’ would have been employed.

2. See eg Williams v Settle (1960) 1 WLR 1072.

3. See eg Hubbard v Vosper (1972) 2 QB 84. Note also the recent case of Hyde Park Residence Ltd v Yelland (2000) EMLR 363, CA. For an example of the related right to object to ‘false attribution’, see Noah v Shuba (1991) FSR 14.

4. It is acknowledged that the category of ‘biographical works’ is open to some latitude in interpretation and could merge imperceptibly, in some instances, with other genres such as histories or news reports. The cases considered below generally fall within the core meaning of the term and are almost all concerned with substantial works concerning single individuals.

5. The numerous such cases which have arisen in the United States provide a fertile body of facts for analysis. Accordingly, they are used here primarily as examples of the differing motives of claimants in such cases. While the copyright laws of the United States and this jurisdiction have a common origin, they also have some substantially different features. In this article, the legal position in this jurisdiction is analysed. Wherever it becomes necessary to highlight a significant distinction between the laws of the two jurisdictions in discussing US cases, this is done in a footnote.

6. See Folsom v Marsh 9 F Cas 342 (1841).

7. This dispute, along with others considered below, was not subject to final judicial determination. For details, see C Dyer ‘Executors “Could Halt” Diana Book’ Guardian, 4 October 1997, p 3.

8. Salinger v Random House Inc 650 F Supp 413 (1986), 811 F 2d 90 (1987); New Era Publications International v Henry Holt and Co 695 F Supp 1493 (1988), 873 F 2d 576 (1989); New Era Publications International v Corol Publishing Group 729 F Supp 992 (1990), 904 F 2d 152 (1990); Wright v Warner Books Inc 748 F Supp 105 (1990), 953 F 2d 731 (1991).

9. Following, in particular, the decisions of the Court of Appeals in Salinger and New Era International v Henry Holt and Co, a number of scholarly articles were published concerning the defence of ‘fair use’ and the extent to which it was appropriate to utilise copyright law in the service of privacy. See eg J O Newman ‘Copyright Law and the Protection of Privacy’ 12 Colum-VLA JL & Arts 459 (1988); P N Leva1 ‘Toward a Fair Use Standard’ 103 Harv L Rev 1137 (1990); M S Bilder ‘The Shrinking Back: The Law of Biography’ 43 Stan L Rev 299 (1991), T De Turris ‘Copyright Protection of Privacy Interests in Unpublished Works’ (1994) Annual Review of American Law 277. Although the fact that copyright law has at times been enlisted in the service of privacy had been noted a century earlier in Brandeis and Warren's seminal article, ‘The Right to Privacy’ (1890) 4 Harv LR 193.

10. In Rosemount Enterprises v Random House Inc (366 F 2d 303 (1966)), a case concerning a biography of Howard Hughes, Moore J attributed this perennial popularity to the fact that the subject matter of biographies is ‘… human nature and they reflect the social, economic and political forces of the particular era involved…’ (at 306)

11. Again, in Rosemount Enterprises v Random House Inc (366 F 2d 303 (1966)), Moore J stated that: ‘Biographies, of course, are fundamentally personal histories and it is both reasonable and customary for biographers to refer to and utilize earlier works dealing with the subject of the work and occasionally to quote directly from such works…’ (at 307).

12. Or indeed, in some instances, with the privacy of another person. See eg the claim brought by Ernest Hemingway's widow in Estate of Hemingway v Random House 23 NY 2d 341 (1968).

13. These letters had been acquired from their recipients by a number of publicly accessible academic libraries in the United States. Hamilton read and reproduced them in the course of his research for the biography. See I Hamilton In Search of J.D. Salinger (London: Heinemann, 1988). See Salinger v Random House Inc 650 F Supp 413 (1986); 811 F 2d 90 (1987).

14. New Era Publications International v Henry, Holt and Co 695 F Supp 1493 (1988), 873 F 2d 576 (1989).

15. It is ironic to note that the rise of copyright law in its contemporary form has quite plausibly been linked to the rise of the contemporary biographical form. See M Rose ‘The Author as Proprietor: Donaldson v Becketand the Genealogy of Modem Authorship’ in B Sherman and A Strowel (eds) Of Authors and Origins: Essays on Copyright Law (Oxford: Clarendon Press, 1994) p 23.

16. See eg S Zimmermann ‘A Regulatory Theory of Copyright: Avoiding a First Amendment Conflict’ 35 Emory LJ 163 (1986).

17. See eg P Jaszi ‘On the Author Effect: Contemporary Copyright and Collective Creativity’ in M Woodmansee and P Jaszi (eds) The Construction of Authorship: Textual Appropriation in Law and Literature (Durham NC: Duke University Press. 1994) p 35.

18. Cf ‘Any attempt to use one or other of the two commonly advanced rationales for copyright law as a navigational device in the quest for legal policy is futile. This is because the substantive rules of copyright appear to have developed in a fashion which pays little heed to either rationale’: F M Patfield ‘Legal Policy and the Limits of Literary Copyright’ in P Parrinder and W Chernaik (eds) Textual Monopolies: Literary Copyright and the Public Domain (London: Office for Humanities Communication Publications, 1997).

19. For a comparative history of copyright law in which a similar position is adopted, see D Saunders Authorship and Copyright (London: Routledge, 1992).

20. For a definition of the forms of work protected by copyright law in the United Kingdom, see Copyright Designs and Patents Act 1988, ss 1–8.

21. Eg in the Salinger and New Era cases mentioned above, the defendants wished to use letters written by their subjects. The case of Estate of Hemingway v Random House (23 NY 2d 341 (1968)) concerned the Boswell-like use of conversations between a biographer and his subject. The claimant in Roy Export Co v Columbia Broadcasting Systems (503 F Supp 1137 (SDNY 1980)) sought to prevent the reproduction of extracts from films featuring Charlie Chaplin in a television feature concerning Chaplin's life.

22. The first owner of copyright will not be its author where it was created by an employee in the course of employment: see Copyright Designs and Patents Act 1988, s 11(2).

23. See eg Salinger v Random House Inc 650 F Supp 413 (1986); 811 F 2d 90 (1987).

24. See eg Estate of Hemingway v Random House 23 NY 2d 341 (1968).

25. See eg Harper & Row v Nation Enterprises 471 US 539 (1985).

26. See eg Rosemount Enterprises v Random House Inc 366 F 2d 303 (1966).

27. See Copyright Designs and Patents Act 1988, s 12. Although where ‘Publication Right’ arises, a work may not be freely reproduced for an even longer period. See Copyright and Related Rights Regulations 1996, SI 1996/2967, reg 16. For a discussion of the impact of extended terms of copyright protection on literary scholarship, see P Parrinder and W Chernaik (eds) Textual Monopolies: Literary Copyright and the Public Domain (London: Office for Humanities Communication Publications, 1997) and J Griffiths ‘Copyright in English Literature; Denying the Public Domain’ (2000) 4 EIPR 150. Generally, the term of copyright in the United States is now equivalent to that in this jurisdiction. See Copyright Act 1976 (US), s 302.

28. Copyright Designs and Patents Act 1988, ss 16–27.

29. Copyright Designs and Patents Act 1988, s 16(3). A part of a work can be ‘substantial’ even though, proportionately, it forms quite a small part of a work as a whole. The test is qualitative rather than quantitative and is based upon an assessment of how much labour and skill has been invested in the part of the work under consideration. For an interesting recent application of this test in the context of software copyright, see Cantor Fitzgerald International v Tradition (UK) Ltd (2000) RPC 95.

30. See eg the case of Corelli v Gray (1913) TLR 570.

31. This distinction is explicit in the relevant US legislation (Copyright Act 1976, s 102(b)) and is an implicit principle in UK law (see eg Ravenscroft v Herbert(1980) RPC 193).

32. Many non-lawyers would recognise in this separation of ‘fact’ and ‘expression’ a rather touching faith in the possibility of ascertaining objective facts beyond expression. For an illustration of the bemusement of one non-lawyer when faced with this dichotomy, see I Hamilton In Search of J D Salinger (London: Heinemann, 1988) pp 194–195.

33. Although it should be noted that in some cases in the United States, courts have found that, where a purely factual work is concerned, no copyright infringement will occur even where that work is reproduced exactly. In such circumstances, there is considered to be no protectible ‘expression’ over and above the work's factual content. See eg Wright v Warner Books Inc 953 F 2d 731 (1991) at 736 and 742. This approach is not adopted in the United Kingdom.

34. Ian Hamilton's failure to do this to the satisfaction of the US Court of Appeals for the Second Circuit, lies at the heart of the case of Salinger v Random House. The majority of that court found that, despite Hamilton's attempts to paraphrase Salinger's letters in order to avoid infringement, he had nevertheless reproduced a ‘substantial part’ of their expression. For comparison of Salinger's letter and Hamilton's original text, see Salinger v Random House Inc 650 F Supp 413 (1986) at 419.

35. Salinger v Random House Inc 650 F Supp 413 (1986) at 424. This assessment of the biographer's dilemma is surely more persuasive than the dismissive approach taken to the problem in the Court of Appeals for the Second Circuit when Judge Leval's decision was reversed. See Salinger v Random House Inc 811 F 2d 90 (1987) at 96.

36. In particular, the defences in Copyright Designs and Patents Act 1988, s 30. In the United States, the equivalent defence is known as ‘fair use’ and is set out in the Copyright Act 1976. s 107:

‘… the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -

the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

the nature of the copyrighted work;

the amount and substantiality of the portion used in relation to the copyrighted work as a whole;

the effect of the use upon the potential market for or value of the copyrighted work. The fact that the work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.’

Thus, for example, in Wrights v Warner Books Inc (748 F Supp 105 (1990), 953 F 2d 731 (1991)) the inclusion of a wide range of extracts from the works of the author, Richard Wright, in a scholarly biography was permitted as ‘fair use’ . The factors militating in favour of this finding were the scholarly nature of the biography, the fact that the biography did not impair the marketability of the claimant's copyright work and that only relatively short extracts had been reproduced. It is important to note that, while the defence contained in Copyright Designs and Patents Act 1988, s 30 is drafted in a strictly limited manner, the defence of ‘fair use’ permits a much greater degree of judicial development.

37. See Salinger v Random House Inc 811 F 2d 90 (1987) in the United States and PCR. Ltd v Dow Jones Telerate Ltd (1998) FSR 170 in the United Kingdom. For a recent example of a case (not a ‘biography case’ in the strict sense) in which a defendant's conduct excluded the application of the ‘fair dealing’ defence, see Hyde Park Residence Ltd v Yelland (2000) EMLR 363, CA.

38. ‘Moral’ is in this sense synonymous with ‘non-financial’ rather than ‘virtuous’.

39. They are protected under the Berne Convention for the Protection of Literary and Artistic Works 1886, art 6bis. In the United Kingdom, the ‘paternity right’ and the ‘integrity right’ were introduced by the Copyright Designs and Patents Act 1988, ss 77–83. In the United States, the number of authors benefiting from moral rights is more limited. Only certain authors of works of visual art benefit from rights of attribution and integrity. See Copyright Act 1976, s 106A.

40. The novel was finally published in a revised form: see D Leavitt While England Sleeps (London: Abacus, 1998).

41. See J Ezard, ‘Spender wins right to suppress novel’ Guardian, 18 February 1994, p 10.

42. Leavitt has explained that he did not originally mention that Spender's work constituted one of the ‘sources’ for his novels as a result of advice from his publisher's in-house lawyer. See D Leavitt ‘A Novel way to Treat a Life’ Guardian, 22 April 1994, G2 p 6.

43. Times Newspapers and Harper Collins Ltd v MGN Ltd (1993) EMLR 442.

44. The Court of Appeal refused an injunction on the grounds, inter aha, that it was impossible to distinguish between those parts of the book publication of which could be justified in the public interest from the remainder of the book.

45. 471 US 539 (1985).

46. The verbatim quotations concerned Ford's account of his pardoning of former President Nixon and were argued by the claimants to be the most significant parts of the autobiography.

47. The requirements for the defence of ‘fair use’ are set out in the Copyright Act 1976, s 107 (US). It is distinguished from this jurisdiction's defence of ‘fair dealing’ by the greater freedom provided for judicial interpretation.

48. The decision was important in emphasising that the unpublished nature of a work militated against fair use. It was also found that the fair use defence (and the ‘ideal expression dichotomy’) effectively covered any interest in free speech in copyright disputes and that there was no place for a separate First Amendment defence to copyright infringement.

49. The same factors would be relevant in assessing ‘fairness’ for the purposes of this jurisdiction's ‘fair dealing’ defence. See eg K Garnett et al (eds) Copinger and Skone-James on Copyright (London: Sweet & Maxwell, 14th edn, 1998) pp 496–508.

50. Perhaps in academia, for example.

51. For recognition of this rationale, see Recital 5 to European Directive 93/98 harmonising the term of protection of copyright and certain related rights.

52. On occasion, courts can even be argued to have gone to unjustifiable extremes in ensuring that this does not happen, see Elanco Products Ltd v Mandops (Agrochemical Specialists) Ltd (1980) RPC 213.

53. See eg Weatherby v International Horse Agency and Exchange Ltd (1910) 2 Ch 297 and Harper & Row v Nation Enterprises 471 US 539 (1985).

54. L Bently ‘Copyright and the Death of the Author in Literature and Law’ (1994) MLR 973 at 981.

55. This was an argument accepted by the Court of Appeals for the Second Circuit, see Salinger v Random House Inc 811 F 2d 90 (1987) at 99.

56. See I Hamilton In Search of J D Salinger (London: Bloomsbury, 1998) pp 3–17.

57. While Salinger will form the focus for discussion below, note that protection of privacy has been the motivating force in other ‘biography cases’ . See eg Estate of Hemingway v Random House 23 NY 2d 341 (1968) and Rosemount Enterprises v Random House Inc 366 F 2d 303 (1966).

58. A spoken ‘work’ can acquire copyright on fixation. In the United Kingdom, see Copyright Designs and Patents Act 1988, s. 3. However, contributions to conversations may often lack the level of ‘labour and skill’ required to give rise to a copyright work. Problems may also arise in establishing the author of any copyright work arising as a result of a conversation. See Estate of Hemingway v Random House 23 NY 2d 341 (1968). Interesting light was cast upon this issue in a Canadian ‘biography case’, Posen v Stoddart Publishing Co 161 DLR (4th) 321 (1998), concerning a claim for infringement of copyright in the conversational speech of the pianist, Glenn Gould (at 329–330). See also Falwell v Penthouse International Ltd 215 USPQ 975 (Virginia District Court).

59. Unless one is persuaded by an argument that the authenticity of a disclosure in the subject's own words increases the intensity of any resulting violation of privacy. Any such increase must surely be very slight.

60. This is a feature of copyright law noted by T De Turris in ‘Copyright Protection of Privacy Interests in Unpublished Works’ (1994) Annual Review of American Law 277. Her suggested solution is to amend copyright law so that, in privacy cases, infringement of ‘facts’ as well as infringement of ‘expression’ can be prevented. This seems to be both impractical and dangerous.

61. Indeed, this is exactly what he attempted to do, Above n 34.

62. See J Ezard ‘Spender wins right to suppress novel’ Guardian, 18 February 1994, p 10.

63. See eg Estate of Hemingway v Random House 23 NY 2d 341 (1968). Ted Hughes's stewardship of the literary estate of Sylvia Plath was also notorious. See K Viner ‘The blood of poetry’ Guardian, 20 January 1998, G2 pp 2–3.

64. 695 F Supp 1493 (1988); 873 F 2d 576 (1989).

65. Proceedings were also taken against those responsible for Miller's biography in the United Kingdom. See Church of Scientology of California v Miller (1987) Times, 23 October (interlocutory injunction refused on the grounds of delay and public interest). In a further case in the United States (often referred to as New Era II), New Era took proceedings against another hostile biographer and his publishers over their use of Hubbard's copyright works: see New Era Publications International v Carol Publishing Group 729 F Supp 992 (1990); 904 F 2d 152 (1990). In that case, the reproduction of extracts from Hubbard's works was found to be ‘fair use’– the biography was educative, used only a small proportion of Hubbard's published work and would have no impact upon the market for New Era's copyright works.

66. The use of unpublished works has been found to be presumptively unfair in the context of the defence of equivalent defence in the United Kingdom: see eg British Oxygen Co Ltd v Liquid Air Ltd (1925) 1 Ch 383. Note, however, that following Salinger and New Era v Henry Holt, an amendment to s 107 of the Copyright Act 1976 was passed to clarify that the application of the fair use defence was not absolutely excluded in the case of unpublished works. Act of 24 October 1992, Pub L 102–492, 106 Stat 3145.

67. A principle put into effect in state privacy law in the United States: see Estate of Hemingway v Random House 23 NY 2d 341 (1968).

68. Cf Hubbard v Vosper (1972) 2 QB 84 and Woodward v Hutchins (1977) 1 WLR 760 in the United Kingdom.

69. Although, again, note the effect of the amendment to the fair use provision discussed in n 66 above. Compare also New Era Pub1icarion.s International v Carol Publishing Group 729 F Supp 992 (1990): 904 F 2d 152 (1990), where use of a small proportion of the published works of Hubbard constituted ‘fair use’.

70. See K Viner ‘The blood of poetry’ Guardian, 20 January 1998, G2 pp 2–3.

71. Copyright Designs and Patents Act 1988, s 80.

72. Its application is even less extensive in the United States, see n 39 above.

73. Copyright Designs and Patents Act 1988, ss 81, 82, 87. For discussion of the weakness of the United Kingdom's moral right regime, see W R Cornish ‘Moral Rights under the 1988 Act’ (1989) 12 EIPR 449; J Ginsburg ‘Moral Rights in a Common Law System’ (1990) 4 Ent LR 121; and D Holderness ‘Moral Rights and Authors’ Rights: The Keys to the Information Age (1998) 1 JILT.

74. Although they do pass to the author's estate on death. See, Copyright Designs and Patents Act 1988, s 95.

75. When employed for non-economic reasons, this particular body of rules seems to operate outside its core domain. It is likely that, given the commercial necessity for a properly functioning system of copyright, the law has been developed in a manner which is particularly suited to ‘economic’ copyright claims.

76. In the United States, remedies for violations of privacy are generally provided in state law. However, these remedies expire on the death of the individual suffering an interference with privacy and are subject to extremely broad ‘public figure’ defences. See Estate of Hemingway v Random House 23 NY 2d 341 (1968); and, for a discussion of the restrictions imposed on the tort of privacy as a result of the ‘public figure’ defence, see D Bedingfield ‘Privacy or Publicity? The Enduring Confusion Surrounding the American Tort of Invasion of Privacy’ (1992) 55 MLR 111. The position in the United Kingdom is likely to change as a result of the Human Rights Act 1998, which requires courts to ensure that our law develops consistently with art 8 of the European Convention on Human Rights. See R Singh ‘Privacy and the Media after the Human Rights Act’ (1998) EHRLR 712.

77. See R Wacks Privacy and Press Freedom (London: Blackstone Press, 1995) pp 48–79 and H Fenwick and G Phillipson ‘Confidence and Privacy: a Re-examination’ (1996) 55 CLJ 447.

78. Hyde Park Residence Ltd v Yelland (2000) EMLR 363. Eg disclosures such as those with which the Court of Appeal was concerned in Woodward v Hutchins (1977) 1 WLR 760 would not be justifiable in the ‘public interest’ if they involved the reproduction of a copyright work.

79. Bonnard v Perryman (1891) 2 Ch 269; Fraser v Evans (1969) 1 All ER 8.

80. See Time Warner Entertainment Company v Channel Four Television Corporation plc (1994) EMLR 1. Cf Service Corporation International plc v Channel Four Television Corporation (1999) EMLR 83.

81. For a recent illustration of the way in which courts in this jurisdiction have sought to accommodate the interests in freedom of speech and the media, see Reynolds v Times Newspapers Ltd (1999) 4 All ER 609. The disadvantages, from a plaintiff's point of view, are even more apparent in the United States, where the effect of the First Amendment on the law of defamation substantially hampers the ability of public figures to rely upon the tort. See New York Times v Sullivan 376 US 254 (1964).

82. See J Griffiths ‘Copyright Law and Censorship -the Impact of the Human Rights Act 1998’ in Yearbook of Copyright and Media Law 1999 (London: Oxford University Press, 1999). The inadequacy of the protection for freedom of public discourse in copyright law is demonstrated very starkly in the Court of Appeal's decision in Hyde Park Residence Ltd v Yelland (2000) EMLR 363.

83. This is a process which has affected other areas of ‘private law’ eg breach of confidence (A-G v Guardian Newspapers (No 2) (1990) 1 AC 109), defamation (Derbyshire County Council v Times Newspapers (1993) AC 534) and negligence (Osman v United Kingdom (2000) EHRR 245).