Legal Question in Intellectual Property in Pennsylvania

Would a resgination letter be considered an original work/creation and therefore be protected from unauthorized release/publication without permission. My finacees brother wrote a very nasty resignation letter to his former employer. Letter was published in a local paper as a "look what this fool did" kind of thing.

Asked on 12/13/11, 9:01 am

2 Answers from Attorneys

John Mitchell Interaction Law

It is pretty easy to pass the originality test for copyright protection, but the author should register the work with the Copyright Office,, to have any hope of a successful legal action. But having a valid copyright (and the registration prerequisite to going to court) is not enough to say there was infringement. All copyrights are subject to certain limitations, the most commonly used ones being Section 107 (fair use) and 109 (rights of owners of lawful copies). For example, if I receive a letter addressed to me, I own it, and am free to give it to a newspaper (but not free to just make copies). Under the fair use factors, how much of the letter was reproduced, for what purpose, and with what effect on the author's ability to profit from it, all get weighed. See, for example.

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Answered on 12/13/11, 10:33 am
Gerry Elman Elman Technology Law, P.C.

Your question implies that the determinative factor would be whether the letter contains copyrightable subject matter, namely original expression by the author. From what you say, the answer would be YES. The letter would be protected by copyright as soon as it was saved to disk or printed.

However, you didn't ask who would OWN the copyright for the letter. Perhaps counterintuitively, federal copyright law provides that a work of authorship created by an employee in the course of employment is deemed to have been authored by the employer and is owned by the employer.

I am not aware of any case law on the subject and would welcome further guidance from my learned brethren as to whether there has ever been a court decision on who owns the copyright in a letter of resignation.

Preliminarily, I'd note that the employee was employed until the letter of resignation was delivered and accepted, so it would be reasonable to conclude that the authorship occurred in the course of employment and that the employer owns the copyright. However, it seems fair to say that generation of a letter that is intended to terminate employment could reasonably be deemed to be outside the scope of employment, even if written on "company time." If so, the individual who wrote the letter would be deemed to be the author and hence the copyright owner.

I would add that the copyright owner would need to REGISTER the work of authorship with the U.S. Copyright Office as a condition precedent to enforcing the copyright.

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Answered on 12/13/11, 10:39 am

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