However, in response to concerns about the implications of this case on scholarship, Congress amended the Copyright Act in 1992 to explicitly allow for fair use in copying unpublished works, adding to 17 U.S.C.

[3] A very private person, at the time the trial began he had spent the last thirty-four years living in the small community of Cornish, New Hampshire, with an unlisted telephone number and a post office box for his mail.

[4] Ian Hamilton (1938–2001) was a respected British literary critic and biographer who decided to write a biography of Salinger.

He was poetry and fiction editor of The Times Literary Supplement and had written a well-received biography of Robert Lowell, approved by the poet's family.

[5] Salinger found from the May draft that his personal letters were held by the libraries, accessible to the public, and the book was quoting them extensively.

[8] In October 1986 Salinger sued Hamilton and Random House, asking for damages and an injunction against publication of the book.

However, the court did note that in the May draft of the book Hamilton "was certainly giving himself a generous benefit of the doubt in concluding that the library agreement did not call for permissions.

"[8] The claim of breach of contract was based on an alleged violation of the terms set out in the library forms used to obtain access to the letter.

[6] On the question of the library forms, the court considered that any restriction in the use contracts ... should be understood as applying only to quotations and excerpts that infringe copyright ... to read them as absolutely forbidding any quotation, no matter how limited or appropriate, would severely limit proper, lawful scholarly use and place an arbitrary power in the hands of the copyright owner going far beyond the protection provided by law.

It noted that the Supreme Court ruling on Harper & Row v. Nation Enterprises (1985) had observed "the scope of fair use is narrower with respect to unpublished works."

The court quoted a 1929 decision that the protected expression was more than the literal words but also included the "association, presentation, and combination of the ideas and thought which go to make up the [author's] literary composition."

It quoted a 1977 decision that, "What is protected is the manner of expression, the author's analysis or interpretation of events, the way he structures his material and marshals facts, his choice of words and the emphasis he gives to particular developments."

The court gave several examples of paraphrasing, including:[10][6] The last and perhaps most important aspect in evaluating fair use is the effect on the market for the copyright-protected work.

The second circuit court of appeals considered the impact Hamilton's biography would have if Salinger later decided to publish his letters, which could have significant financial value.

Salinger seemed to have created a per se rule under which unpublished copyright protected material could never be reproduced under the "fair use" principle, at least under "ordinary circumstances.

[5] In rejecting the petition for a rehearing, the court quoted the finding in Nutt v. National Institute Inc. (1929) that passages impermissibly took the expressive content of Salinger's letters by copying the author's "association, presentation, and combination of the ideas and thought which go to make up [his] literary composition.

[15] However, the essay illustrates that a judge may be tempted to use copyright law to support an objective other than simply protecting commercial rights.