You're at work on an investigative magazine article. Or maybe a critical and unauthorized book about a controversial subject. In the course of your research you uncover private memos, letters, and other personal materials that provide insight into your subject. When you sit down to write you quote liberally from these materials to add drama and credibility to the story.

But don't be surprised if the next call you get comes from a lawyer warning you about a potentially lethal lawsuit alleging copyright infringement. As a result of some ominous federal court decisions in recent years, journalists and their publishers now operate at considerable risk when quoting without permission more than a few isolated words from such private documents.

For years, federal copyright law has recognized a "fair use" doctrine that permits journalists and other writers to quote passages from previously published works. For example, reviewers regularly quote from an author's book. But courts have all but emasculated the fair use doctrine when it comes to a journalist's right to quote from previously unpublished materials, such as private memos and letters, without prior permission from the author.

My own discovery of this disturbing development occurred during the course of researching a book about Werner Erhard, a former Philadelphia car salesman who shot to fame in the 1970s as the founder of est. I had gathered reams of written materials -- some of it private and confidential -- that were helpful in drawing a comprehensive portrait of my subject. However, my publisher's legal counsel insisted on making scores of changes in the book in order to reduce, if not eliminate, the possibility of a successful suit for copyright infringement.

Unfortunately, I understood all too well the practical concerns involved in the legal review of my manuscript. In libel cases, plaintiffs are entitled to monetary damages after proving they have been defamed by false published material. However, plaintiffs in copyright cases can seek injunctions to prevent the material from being published at all. Naturally, publishers, lawyers, and writers cringe at the threat of such legal action.

In 1987 reclusive writer J. D. Salinger went to court in a successful attempt to prevent an unauthorized biography from including portions of his private letters obtained by the book's author without Salinger's approval. The book was eventually published, but only after the author had agreed to remove the offending quotes.

In another major copyright case two years later, lawyers for a publishing entity associated with the Church of Scientology all but succeeded in convincing a federal appeals court to enjoin publication of Russell Miller's Barefaced Messiah, a critical book about Scientology founder L. Ron Hubbard, because it included "more than minimal amounts" of unpublished Scientology works. Only a technical glitch in the filing of the suit prevented Scientology from getting its injunction.

Book authors and their publishers are not alone in risking the consequences of diligent journalism. In a landmark case from which other copyright rulings have flowed, the U.S. Supreme Court in 1985 ruled that The Nation magazine was guilty of copyright infringement when it included 300 words from an about-to-be published memoir by former President Gerald Ford in a 1979 article that scooped Time magazine's authorized excerpt from the book. Justice William Brennan, in a stinging dissent, warned that the court's handiwork threatened to "stifle the broad dissemination of ideas and information" fostered by a vigorous free press.

As recently as November 1992, a federal judge in New York ruled that Harper's magazine had violated copyright law by publishing without permission a lengthy portion of a letter written by literary editor and author Gordon Lish. The collective toll of various court decisions adds up to a "limit on the right of free expression," media lawyer Martin Garbus told The New York Times in the wake of the Lish ruling. The courts have made it clear, Garbus added, that copyright protection will come "at the expense of the First Amendment."

On a practical level, of course, it will always be difficult to obtain an injunction against a magazine or newspaper because they are published so quickly. Still, says Paul Sieven, a New York attorney and expert on copyright law, "You can't dismiss the fact that, as a theoretical matter, a routine action of a journalist can lead to a legal challenge. That possibility ought to make people uncomfortable."

In 1992, Congress passed a law aimed at easing the most confining application of the fair use restrictions. The new legislation added one sentence to the 1976 federal copyright statute; it says that a work's unpublished nature does not, in and of itself, automatically prevent a judge from applying the fair use doctrine. The new law apparently has yet to be tested in court.

Interestingly, one of the loudest calls for legal challenges to the status quo has come from one of its architects. Judge Jon O. Newman, who sits on the federal U.S. Court of Appeals for the Second Circuit, wrote the court's Salinger decision but took a different tack a couple of years later in a law review article on the subject.

Newman called on publishers and their attorneys to "avoid the dangers of unwarranted self-censorship" by taking an aggressive stand in cases alleging copyright infringement. "Publishers," he urged, "should be willing in selective instances to dig in their heels and litigate."

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