I have a workmanship issue regarding vinyl siding installed on my home which the contractor refuses to address. We’ve had several email exchanges. Can I publish his email replies?
I’d like to include those replies in my reviews (Yelp, etc.).
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You didn't ask but I'm telling you anyways: E-mail, like all written work, is copyrighted by its author and often cannot be reproduced without the author's permission. So even if contents of the e-mails are not confidential—i.e., nothing stops you from discussing them with others—you could still get sued under copyright law if you publish them and the author is feeling spiteful enough.– Michael SeifertOct 10, 2019 at 18:36
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Thanks for your reply. I can still use "fair use" though.– user28014Oct 10, 2019 at 18:46
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On what basis do you think fair use applies?– user4657Oct 10, 2019 at 18:47
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2@Nij: It'd probably be a fair use case, since the four factors weigh in the OP's favor: the OP's review would probably add information & meaning to the e-mails; the e-mails are not primarily a creative work; the amount taken from them would (presumably) not be substantial; and there isn't a potential market for e-mails from siding companies that can be impacted. That said, the "fair use" determination is a defense if you get sued — it's not a defense against getting sued, if you see the distinction.– Michael SeifertOct 10, 2019 at 19:10
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1 Answer
If your contract for the job includes some kind of confidentiality clause prohibiting revealing communications related to the job, then yes it is prohibited. But I have never seen any such thing: check your paperwork. Even if somebody writes at the bottom of their email "This email is confidential and cannot be distributed to anybody other than the intended recipient", this is legally ineffective. Even in the case of supposed attorney-client privilege, this disclaimer is not necessarily effective. Presumably the subject matter is not covered by laws about national security, disclosure of student records, medical information, or stuff about brokers disclosing financial information.
As for the question of copyright, this probably falls under fair use, given the nature of the use and the original. The reason why the "fair use" exception exists is so that people can write reviews of book or – especially – promulgate quotes from politicians in "yes he did really say that" commentary. That seems to be what you are talking about here.
answered Oct 10, 2019 at 18:08
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Of course, if these reviews are posted to a third-party website such as Yelp, and the author sends a copyright cease & desist letter, I will bet you one shiny quarter that Yelp will pull the reviews down rather than mount a spirited fair use defense on the OP's behalf. Oct 10, 2019 at 19:12
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Dunno if I want to bet a shiny quarter that the OP will file a counter-notice. You can up the ante with the contractor filing an infringement suit. There's case law regarding frivolous copyright takedowns and fair use.– user6726Oct 10, 2019 at 19:40