QUESTION: The facts are still emerging regarding these emails. But based on information provided by Gina Smith, the reporter who broke the story for The State, during an interview on the Rachel Maddow Show were provided to the newspaper anonymously. Reportedly, The State received them in December 2008 and sat on them until now. Gina Smith told Rachel that the newspaper spoke with its attorney before publishing them. Can you envision any possible exception to the copyright law that has given them comfort in publishing this material, particularly the emails from Sanford's lover?
ANSWER: Copyright protection is not available for a "work of the United States Government." However, that is defined as a work prepared by an officer or employee of the United States Government as part of that person's official duties. Even if sent via a government email account, the emails clearly were not drafted as part of the Governor's official duties. As such, they are not a work of the government, but are personal writings, in which he (and she) own the rights.
News organizations typically rely on the doctrine of "fair use," which has been developed through a substantial number of court decisions over the years and codified in 17 U.S.C. section 107 of the copyright law. Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as news reporting.
The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use, including "quotation of short passages in a scholarly or technical work, for illustration or clarification of the author's observations" and "summary of an address or article, with brief quotations, in a news report."
The distinction between fair use and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission.
However, reprinting the emails in their entirety, word for word, probably goes well beyond permitted fair use. The news story could have been written by describing, summarizing or paraphrasing the emails, with a few brief quotations. Printing them all verbatim, or even including entire paragraphs as many news organizations have done, may be more than is legally permissible.
While the damage has been done, Sanford may have legal recourse against the persons involved in publishing the e-mails in their entirety.