John W. Dean

Why Didn't Governor Sanford Suppress His E-Love-Letters?

By JOHN W. DEAN
Friday, June 26, 2009

It is never pretty watching a public figure fall from grace, whether you agree or disagree with that person's politics, and South Carolina Governor Mark Sanford is in freefall. Most recently, a South Carolina newspaper, The State, revealed explicit love-letter emails (on June 24, 2009 and June 25, 2009) between the Governor and his Argentinean lady-friend. The emails have placed him somewhere between frustrated Lothario and a national joke. His political opponents are calling for his resignation. His presidential aspirations are history.

While I am no expert on copyright law, I know enough to understand that those laws could apply in situations like this, and throughout history, they have been so invoked. For example, I recently wrote the foreword to the forthcoming The Harding Affair: Love and Espionage during the Great War (to be published this fall), which is based on Harding's love letters to Carrie Phillips written during their fifteen-year affair, which ended before he ran for president.

When the Harding letters first surfaced in 1964 (forty-one years after his death), the Harding family went to court to block their publication. They claimed the family had inherited Harding's copyright interest in the letters. The case was settled out of court, with the letters being sent to the Library of Congress, where they will remain sealed until 2014. (James Robenalt, the author of The Harding Affair and a practicing Ohio attorney and serious student of the state's history, obtained a microfilm copy of the letters that was outside the settlement, and the copyright on the letters expired several years ago – notwithstanding the fact that the originals remained sealed. In addition, Robenalt advised the Harding family that he had no interest in sensationalizing the letters; rather, his interest was in the significant insights they provide into this much-maligned former president.)

My immediate reaction -- or actually, question -- upon learning of the Sanford email love letters was why hadn't the Governor exercised his copyright ownership rights over this material and blocked its publication? While Sanford may still have suffered self-inflicted mortal damage to his political career, suppressing the letters might have allowed him to spare his wife and children, not to mention the children of his lover. Inexplicably, I can find no evidence that he took any such action.

To try to figure it out, I contacted Los Angeles-based attorney John C. Kirkland, who not only understands copyright law well, but also authored the best-selling book Love Letters of Great Men. Our email exchange follows:

Attorney John Kirkland's Views on Sanford's Scarlet Emails

QUESTION: As a general proposition, is not private and non-governmental business correspondence like the emails that have surfaced between Sanford and his lady-friend protected by common law copyright, which would prohibit anyone other than the author of the correspondence from publishing it?

ANSWER: Copyright is a form of protection grounded in the U.S. Constitution and granted by federal statute, for original works of authorship fixed in a tangible medium of expression, including a form that is only perceptible with the aid of a machine, such as email. Copyright covers both published and unpublished works. A work is under copyright protection the moment it is created.

There is no question that the Governor's love letters, and those of his paramour, are subject to copyright protection. Indeed, like poetry, love letters are an intensely creative and original process, among the most deserving of copyright protection.

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.

QUESTION: Is it too late for Governor Sanford or his lady-friend to take legal action? And, if they did, what might they do, and could they collect damages?

ANSWER: It may be too late to seek an injunction, since it can be hard to put the toothpaste back in the tube. However, they may be entitled to money damages. The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer.

In many cases, copyright owners elect to receive statutory damages in lieu of actual damages. Statutory damages may range from $200 to $150,000, depending on whether the infringement was willful, or the infringer had reasonable grounds for believing that its use of the copyrighted work was a fair use under section 107.

QUESTION: While I am asking you to speculate, can you imagine any legal or other reason why Governor Sanford has not taken action – assuming he is not so lovesick he cannot think straight?

ANSWER: One thing I learned in researching Love Letters of Great Men was that even strong political leaders do not always use the best judgment when it comes to matters of the heart. Ovid wrote a poem about Caesar's daughter and spent the rest of his life in exile. Sir Walter Raleigh quite literally lost his head over Queen Elizabeth I. I suspect emotion played a role in the Governor not acting immediately. He also may also simply be unaware of his rights.

QUESTION: When researching and writing Love Letters of Great Men did you run into situations like the Harding letters, where copyright was invoked to stop others from publishing the material? Or any parallel-type situations?

ANSWER: Since in most cases my book includes the entire original love letters, I only used letters for which I had permission or that were in the public domain. (The same was true of the period illustrations the book includes.) There was an extraordinary letter written by President Reagan aboard Air Force One I that I would have loved to include, but I could not get permission from the estate in time to include it. Unlike The State, I did not feel right about trying to rely on fair use, without getting permission.

QUESTION: I noticed that you have only published "Volume I" of Love Letters of Great Men. What is the criteria for "Great Man" status and is Governor Sanford a potential candidate for your "Volume II"? Would you have copyright concerns about publishing these email love letters?

ANSWER: I had two criteria for including letters in the book. First, the writer had to be famous enough that most people would at least recognize his name, even if they might not know everything about him. Second, the letters he wrote (at least the ones I included) had to be beautiful and deeply moving. William Congreve wrote some beautiful love letters to his wife, but did not accomplish enough outside of writing to make the cut. Conversely, Michelangelo was an unmitigated genius in a plethora of areas, but I have read grocery lists more romantic than his love letters. I suspect his inamoratas were willing to overlook it.

Closing Thoughts on the Sanford E-Love Letters

In addition to the mystery of who anonymously provided the emails to The State, we may never learn why Sanford and his lover allowed The State to publish their copyrighted works without objection – not once but on two occasions, assuming it is not the case that more are coming. They had to be aware of this potential. According to The State, the paper emailed Sanford's lover many months ago to verify the emails, but she did not respond. Did she not tell Sanford? Did he not believe the newspaper would publish the letters? Did he not think to speak with an attorney so that he might protect his family from this added humiliation?

If someone ripped off the copyright of The State in a similarly blatant fashion, I am sure that person would hear from the newspaper's attorney. It appears that The State, however, has wagered that if it published the letter, and took down the Governor, then he would decide that he would look even worse if he were to protect himself by invoking the copyright law against the paper. Or maybe they have such a large collection of emails that they believe publishing only a few is "fair use," a risk they were willing to take.

Whatever the explanation, in the end I suspect that a legal footnote to Sanford's affair will be that it has not been good for those who believe that the copyright laws are important, even in circumstances like those facing Governor Sanford and his lover. No one is more sympathetic to bringing the copyright law into the digital age than yours truly, but this is not exactly the way those laws should be reformed.

John W. Dean, a FindLaw columnist, is a former counsel to the president.

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