Archives, letters, diaries, manuscripts, reports, or any work that the owner may publish in the future can be considered as unpublished works. However, when talking about copyright, we most likely would refer to published books, papers, photographs, etc. So is it OK to use unpublished work without permission? No.
Copyright of an unpublished work lasts for the life of the author plus 70 years. If the author (or the author’s death date) or the author is unknown or if the author is a corporation or organization, then the term is 120 years from the creation date for the work. After that duration, all works will be moved to the public domain.
Therefore, Shakespeare’s work is free to use for everyone, while Hemingway’s, as well as many other archived works, still have a few decades to go before they land in the public domain
Apparently an unpublished work is protected by copyright, but I also wonder, should the way in which the unpublished material is used affect the scope of protection? For example, if the unpublished work is a letter, does the copyright belong to the person who wrote the letter, as the creator of the original work, or the recipient who actually “owns” the original letter own the copyright?
Strategically Communicating 
Interesting point! This reminds me of an article I read recently, which concerned the copyright of Anne Frank’s Diary. Scheduled to terminate this year, the copyright was extended until 2050 by crediting Anne’s father, Otto, as a co-author to the book. In doing this, Anne Frank Fonds — the Swiss foundation that owns the rights to the book — ensured that the copyright will expire 70 years after his death, rather than hers. However, now they are facing controversy because Otto had during his lifetime claimed that the book was made up of his daughter’s words, and this move seems to contradict that claim. In keeping Anne Frank’s diary out of the public domain for another 35 years, the foundation is inciting questions about the legitimacy of its creation. Why would they do that? (Here’s an article, for reference: http://time.com/4113855/anne-frank-diary-co-author/.)
This example doesn’t help answer your question, I admit; but I think it helps make the point that publishing work after an author’s death can be incredibly tricky, especially when he/she apparently had no intentions of publishing it.
By: richardlp on November 16, 2015
at 4:21 pm
In a separate article by Doreen Carvajal of the New York Times, it is noted by Yves Kugelmann, a board member of Anne Frank Fonds (the Swiss Foundation that owns the rights to Anne’s Diary), that the copyright extension is not about the money. It is, instead, about maintaining control of her legacy so that they can ensure its protection. Interestingly enough, the 30+ million copies sold to date have allowed the foundation to donate $1.5 million per year to a variety of charities. How much of the earnings are retained is unknown, as they do not publish yearly finance reports.
If their attempt at making Otto Frank a co-creator holds, they may even be able to extend the copyright again. A second editor, Mirjam Pressler, made several changes and added material for the “Definitive Edition” in 1991, the rights of which were transferred to the foundation. She is still living, so adding 70 years to her future date of death could extend the foundation’s hold by nearly a decade. As outlined in one of the readings, “The authors of a joint work are all co-owners of the copyright in the work, unless there is an agreement to the contrary.”
Article: http://www.nytimes.com/2015/11/14/books/anne-frank-has-a-co-as-diary-gains-co-author-in-legal-move.html?_r=1
Reading: http://www.arsny.com/copyright-basics/
By: uommjdm on November 16, 2015
at 6:33 pm