24 May 2014

Archives and memories

Intellectual property students have a short reminder of copyright in letters in the current controversy over correspondence from Jacqueline Kennedy to a Vincentian priest.

Under Australian, UK, US and Irish law the recipient of a letter gains legal ownership of the medium - ink, paper, envelope, stamp (even sealing wax, if you are lucky) - but the author of the letter retains copyright. The recipient can legally read, destroy or sell the medium but typically does not have authority to publish what was written.

Some recipients have sold correspondence at auction or sold a cache of letters to a collecting institution, in some instances for over US$1 million. On occasion they or biographers and other scholars have been restrained from reproducing the correspondence as a whole or from extensive quotation. A much cited example is action by JD Salinger to block quotation of intimate correspondence. Henry James, just as famously, retrieved letters from recipients and burnt them - along with manuscripts of novels and short stories - in a regrettable bonfire in his garden at Rye.

In the US there has been interest in what the New York Times describes as "an unlikely friendship" and "an extraordinary correspondence" in which Jacqueline Bouvier (later Jacqueline Kennedy) "revealed her private thoughts" during courtship and marriage with John F. Kennedy. Her letters were addressed to Vincentian priest Joseph Leonard, whom she met in Ireland in 1950. The published snippets - including characterisation of JFK as consumed with ambition “like Macbeth” - reinforce perceptions that she was more acute than the charismatic, golden-haired and somewhat empty-headed President.

The Times reports that
The letters were uncovered in April at a financially strapped college in Ireland, which had planned to sell them at auction as part of a plan to raise money. But earlier this week, the auction was called off, and on Friday, officials at the college, All Hallows in Dublin, said they had learned that the institution did not own the letters after all, and announced that it was closing its doors.
It seems doubtful that the Kennedy family, which stepped in to object to the auction, even knew of the letters’ existence until excerpts were published earlier this month in newspapers on both sides of the Atlantic. ... Phillip Sheppard, the head of the auction house that planned to conduct the sale, told news outlets that a “private source,” whom he has not identified, had brought the letters forward.
Mr. Sheppard estimated that the letters from the famously private former first lady might fetch as much as $5 million. ... 
On Wednesday, the auction was abruptly called off, and the college said that the Kennedy family had stepped in. A further twist emerged Friday, when the college announced that Father Leonard had bequeathed the letters in a will to his religious order, the Vincentian Fathers. The will, which had been presumed lost, had been discovered in recent days, the college said. ...
Whether the letters will ever become public remains unclear. The revelation of candid thoughts written to a priest, with the likely expectation that they would remain confidential, has roiled an age-old debate over privacy and the obligations of public figures to illuminate the historical record.
'Ae Fond Kiss: A Private Matter?' by Hector Lewis MacQueen in Burrows, Johnston and Zimmermann (eds), Judge and Jurist: Essays in Memory of Lord Rodger of Earlsferry (Oxford, 2013) 473-488 discusses the 1804 case of Cadell & Davies v Stewart, in which the existence of rights to publish or to prevent publication of private letters between poet Robert Burns and his close friend Agnes McLehose was ventilated at length by the advocates and judges. MacQueen assesses the evidence for what really happened between Burns and Agnes, and discusses the contemporary significance of the court's decision to prevent publication.

MacQueen comments
On 16 May 1804, the Court of Session decided to prohibit the continued publication of 25 passionate personal letters written by Robert Burns to “Clarinda”, the love of his life (at least between December 1787 and February 1788, when most of the letters were written). The letters had been published in a slim pocket-sized volume in spring 1802, whereupon proceedings were commenced in November by the holders of Burns’ copyrights and, subsequently, his family. The Court’s decision came even though Burns had been dead for eight years, and his physical relationship with Clarinda, so far as could be told from the letters, had involved only heavy breathing and perhaps, late at night, the occasional fond kiss and cuddle (of which more anon). But Clarinda was still very much alive at the time of the case and living in Edinburgh; she was in possession of the originals of the letters in question; and, averred the publisher of the book, Mr Thomas Stewart, bookseller of Glasgow, she had consented to their publication. 
Not being a party to the case, however, Clarinda (whose real name was Agnes McLehose, and who was usually known to her friends as Nancy) was in no position to deny Stewart's allegation before the court. Nor did she really want to "go public" about her affair with Burns. At the most intense period of their relationship, they were each married to someone else: Burns in his irregular relationship with Jean Armour,4 who had already borne him twins in 1786 and was again pregnant by him back in Ayrshire; Clarinda to a dissolute Glasgow lawyer, James McLehose, from whom, however, she had been estranged and living apart since 1782. In itself this was scandalous by contemporary standards, since quite apart from the disgrace of leaving her husband, how she managed to survive thereafter was unclear unless it was on immoral earnings or with the covert support of a rich lover. … Robert Burns spent the winter of 1787-88 in Edinburgh, where he was seeking to follow up the success of the Kilmarnock edition of his poetry published in 1786, obtain money and patronage, and widen his experience and influence. At the beginning of December 1787 he went to a tea-party and there met the attractive, yet religiose and bookish, Agnes McLehose. Like Burns, she was 28 years old, and lived with her two surviving children and her servant Jenny Clow at General’s Entry just off Potterrow on the south side of Edinburgh – not the best part of town in those days, but not the worst either. 
After the tea-party, Burns and Nancy began a high-flown but increasingly amorous correspondence which lasted for the next three months, addressing each other and signing themselves as "Sylvander" and "Clarinda" respectively. They wrote initially because Burns had managed to fall out of a carriage (possibly due more to the coachman’s than Burns’ consumption of alcohol) and was consequently laid up at home with a dislocated knee, unable to get about on foot or, indeed, at all. So the two communicated via the hourly penny postal service, sometimes also using Jenny Clow as a private courier. The pseudonyms provided at least a fig-leaf of protection for their identities should letters delivered by third hands miscarry in some way. Burns’ womanising reputation was already well established and well justified, so it was a great risk to any female’s good name to be seen alone with him. Email, texting and tweeting, had they existed in the late eighteenth century, would have been useful to the couple, although their words would have had to be fewer and shorter, if not abbreviated. 
When Burns' knee recovered in January 1788, he began paying visits to Nancy late at night in Potterrow as well as continuing to write between visits. Nancy urged him to walk to her house rather than come conspicuously in a sedan chair, or even worse a coach: “A chair is so uncommon a thing in our neighbourhood, it is apt to raise speculation.” But he could go home in a chair, since the neighbours were "all asleep by ten". 
Burns died in Dumfries on 21 July 1796, leaving behind him his wife Jean and their surviving children. Friends and admirers of the dead poet concocted a plan to support the family by publication of all his writings, including his letters. They wanted initially to include in this project Burns' letters to Clarinda, which presumably they knew about because Burns had kept at least some of Clarinda's letters to him. She however refused permission for this, and on her own account asked for the return of the letters she had written to Burns. This was eventually achieved in 1797. Three years later, the first edition of James Currie’s four-volume Works of Robert Burns was published by Cadell and Davies of London (the current members of a long-established and very successful firm of booksellers or publishers, later to be the raisers of the action that came to its culmination in May 180419). The second volume included the full text of a number of Burns’ letters recovered from some of his correspondents, but there was no hint anywhere in the book of his exchanges with Agnes McLehose. … 
Currie’s quasi-apology for publishing private letters in his preface to the second volume is indicative of contemporary attitudes, at least among the letter-writing classes:
It is impossible to dismiss this volume of the correspondence of our Bard, without some anxiety as to the reception it may meet with. The experiment we are making has not often been tried; perhaps on no occasion, has so large a portion of the recent and unpremeditated effusions of a man of genius been committed to the press.
Currie emphasized the fact that the publication was generally with permission from both the family of Burns and those to whom he had written, and also that it had been “found necessary to mutilate many of the individual letters, and sometimes to examine parts of great delicacy - the unbridled effusions of panegyrics and regard",  to make them fit for public viewing. 
Despite, or perhaps because of this, Currie’s book caught the in-coming tsunami of Burns mania. Bardolatry was already manifesting itself, not only in the spread of annual suppers on the anniversary of his birth (the very first was held in the birthplace, Alloway, in January 1797), but also in projects for the creation of monuments around the country. Currie’s Works enjoyed three further editions in 1801, 1802, and 1803, and the book’s immediate success was, as we shall see, an important part of the background to the litigation in 1804. 
While Clarinda might successfully prevent her letters from Burns going into print, she did allow visitors to her house in Edinburgh to see them. She authorised someone called Finlay to quote from Sylvander’s letters when she let him have possession of them for a period. But, as she wrote in 1834, "Besides making this use of the letters, Mr Finlay gave permission to a bookseller to publish all the letters which had been intrusted to him, and added, most falsely, in an advertisement prefixed to them, that this was done with my permission (‘condescension’, as he termed it) ... Nothing could be more contrary to truth."
Meanwhile in Germany it is reported that the Oberlandesgerichte Koblenz (Higher Regional Court of Koblenz) in case reference 3 U 1288/13 has apparently ordered the deletion of intimate photos and videos after a personal relationship came to an end. (Commentary relies on the Court's media release rather than the judgment, which has not yet appeared.)

The defendant and then partner had made a range of images during the relationship; some were intimate (including nude photographs, unsurprising given that the defendant is a professional photographer), others were not. After the relationship ended the partner demanded destruction of both intimate and 'everyday' images in which she appeared. Off to court, after the defendant resisted.

In the District Court the defendant agreed not to publish the images (e.g. place them on the web) or otherwise provide them to third parties. However, he did not agree to delete all electronic images, which we might regard as equivalent to pulling photos of a formerly happy couple out of a personal photo album. So much for the memories.

On appeal the Court appears to have decided that the complainant had some rather than comprehensive personality rights regarding unpublished images. Intimate images were associated with the personal relationship and when that relationship ceased the complainant could accordingly require deletion of those images (presumably by the photographer expunging files from hard drives and cards). That destruction reflects Articles 1(1) and 2(1) of the federal Constitution. The defendant's professional freedom (protected as a human right under Article 12) would not be affected, as the images were made on a personal rather than professional basis.

The 'everyday' images should be treated differently, as exposure would not lower the claimant's reputation in the eyes of third parties. The court noted that it was common practice for the production of still images and video at "celebrations, festivals and on vacation", with people legitimately possessing those images and using them (on a non-commercial basis) in perpetuity.