“Ah, you publishing scoundrel!”: A Hauntological Reading of Privacy, Moral Rights, and the Fair Use of Unpublished Works

Abstract

The doctrine of fair use, as applied to unpublished works, has long been haunted by the specters of privacy and moral rights, a haunting that reached a crisis point in the 1980s when certain court decisions appeared to be evolving a per se rule against the fair use of unpublished works. This chilly season was only partly warmed in 1992 when Congress amended the Copyright Act to clarify that the unpublished nature of a work may not itself bar a finding of fair use. In the years since, no legal case has fully tested the force of Congress’s amendment in the context of scholarly quotation. Publishers and editors in the humanities remain fearful that quotation from unpublished documents will trigger liability or threats of it. By way of analytical exorcism, this essay focuses on the fair use of unpublished works by authors who have since died, in order to make vivid the general problem of allowing privacy and moral rights to haunt the fair use doctrine. As a way of probing these poltergeists more richly, the essay discusses ghost stories by Henry James that anticipate current preoccupations with authorial privacy and moral rights. The essay concludes that we should banish these ghosts in favor of the productive uncanniness of transformative fair use.