## Facts

- J.D. Salinger wrote unpublished personal letters between 1939 and 1961 to friends, editors, and colleagues.
- Recipients or their representatives donated the letters to university libraries; access required signing agreements not to publish without consent.
- Biographer Ian Hamilton, working with publisher Random House on a commercial biography, used the letters as source material after Salinger refused to cooperate and objected to a biography during his lifetime.
- The draft biography included verbatim quotations from the letters and close paraphrases that tracked the letters’ structure and expressive content, not merely their factual substance.
- Salinger had not authorized publication of the letters; after learning of the manuscript’s contents, he registered copyrights and sued for infringement, seeking to stop publication in its current form.

## Issues

1. Whether verbatim quotation and close paraphrase of an author’s unpublished letters in a commercial biography qualifies as fair use under 17 U.S.C. § 107.
2. How the unpublished status of the letters affects the fair-use analysis, including the author’s interest in controlling first publication.
3. Whether paraphrase can infringe by appropriating protectable expression rather than unprotected facts.

## Decision

- The Second Circuit reversed the denial of a preliminary injunction.
- The court held the use of Salinger’s unpublished letters was not fair use under § 107.
- The court ordered that a preliminary injunction issue barring publication of the biography in its existing form.
- The court concluded the district court abused its discretion by undervaluing the expressive copying and the significance of first-publication control for unpublished writings.

## Legal Principles

- An author’s right to control the first public appearance of unpublished expression generally outweighs fair-use claims under ordinary circumstances.
- The unpublished nature of a work weighs heavily against fair use, particularly where the material is personal and expressive rather than purely factual.
- Close paraphrase may infringe when it appropriates the author’s protected expression, including the sequence of thoughts, selection, arrangement, and manner of presentation, even if the precise words are changed.
- Extensive taking of the “heart” of a work—quantitatively or qualitatively—cuts against fair use, especially for unpublished works.
- A commercial biography may be a favored genre for scholarship, but using copyrighted expression primarily as source material, without sufficient transformative commentary on that expression, reduces support for fair use.
- Market harm includes not only lost licensing value but also impairment of the copyright owner’s ability to exploit or withhold the work’s first publication.

## Conclusion

The court held that a commercial biographer’s verbatim quoting and close paraphrasing of an author’s unpublished letters was not fair use because it appropriated protected expressive content and threatened the author’s control over first publication and potential markets, warranting a preliminary injunction against publication of the manuscript as written.


Salinger v. Random House, Inc., 811 F.2d 90 (2d Cir. 1987)