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Legal Eagle

Copyright

Q: Can I use real letters in my play?

I am in the process of writing a play based upon a real-life unconsummated workplace relationship. Real names will not be used but to what extent can I employ the letters exchanged where there is no defamatory material involved? And is there any difference whether the play is performed or disseminated in print form or even on the internet?

A: This is a very topical question in view of recent press interest in the correspondence of the late Princess Diana. The property in a letter in terms of its ownership belongs to the recipient, being the party to whom it is addressed. The recipient can, if he wishes, destroy the letter and, if it passes out of his possession, sue for its recovery. However, this does not mean he can do what he likes with the letter or its contents, as to which there are two main qualifications.

The first is that copyright in the letter belongs to the writer, so that the recipient may not copy or publish it without the writer's consent but, as with any other copyright work, information contained in the document, though not its precise words, may be communicated to a third party without the writer's consent, unless - which leads me to the second qualification - such information is of a private and confidential nature or unless, where the writer himself has published the letter to a third party, the recipient also needs to publish it in order to refute an attack on his character or reputation contained in it.

Marking a letter with words to the effect that it is intended as 'private and confidential' does not necessarily make it so, although it is evidence of the writer's intention and, as such, has a persuasive effect. An obvious example where such a designation would not be effective is where the contents of the letter relate to matters or events which are in the public domain. Whether or not information contained in a letter is to be regarded in law as private and confidential is a matter of fact in each case and, interestingly, there is a section in the Copyright, Designs and Patents Act 1988 which expressly stipulates that nothing in the relevant part of the Act affects the operation of any rule of equity relating to breaches of trust or confidence. The same applies to any rule of law preventing or restricting enforcement of copyright on grounds of public interest or otherwise, which is where, perhaps, the Princess Diana correspondence comes in, and which has been used as a defence in certain high-profile cases involving the memoirs of former members of government secret services.

Copying can be licensed and any confidentiality can be waived by the writer (or other copyright owner) of a letter if he is so inclined.

It should not be difficult for you to apply the above principles to the circumstances of your case but if you are in any doubt on the privacy aspect of the substance of the letters concerned, you should seek legal advice. Clearly you should avoid using the precise language of the letters or anything close to it, without the prior consent of the writer.

There is no difference whether the play is performed or disseminated in print form or on the internet. Print form or reproduction of the letter in any material form is the clearest form of copyright infringement. Speaking the contents of the letter - by an actor onstage for example - without the consent of the writer would also constitute infringement of copyright as a restricted act.

A breach of confidence may also arise out of a confidential relationship - for example, between employee and employer. If an employee writes a letter on behalf of his employer in the course of his employment, the copyright in the letter will belong to the employer, as also will the right to have the contents treated as private and confidential if they can be characterised as such.

Finally, respect for correspondence is one of the rights protected by the European Convention on Human Rights, although what constitutes a violation of it is open to debate in the circumstances of each particular case and will probably not prevail over the concept of public interest.

First published December 2003