Jerome David (“J.D.”) Salinger wrote what may be the most influential American novel of the 20th century, “The Catcher in the Rye” (1951). “Catcher” is also Salinger’s only novel. He’s better known for the gemlike short stories he published In The New Yorker during its literary heyday.
.It’s tempting to use the past tense when writing about Sainger’s work. But he’s still alive.* At 90 years old, he remains a singular character in American letters. He hasn’t published anything since the 1960s; and, perhaps more notably, he has pursued a life of what might be called aggressive reclusiveness – living in rural New Hampshire, refusing interview requests, rejecting overtures from film and television producers, suing anyone he believes has infringed his copyrights, and meeting visitors to his farm with shotgun in hand.
Salinger’s latest legal action is a suit to stop publication in North America of a novel called “Sixty Years Later.” This new book, written by Fredrik Colting, a Swedish publisher of books on popular culture, is an “examination of the relation- ship between J.D. Salinger and his most famous character,” Holden Caulfield, the narrator and antihero of “Catcher in the Rye.” Using familiar elements of metafiction and postmodern literary criticism, “Sixty Years Later” tells how Caulfield, now In hiS late 70s, escapes from a nursing home to confront Salinger. The new book reiterates some of the dramatic structure o f Salinger’s novel but adds a fictional version of Salinger , whom It portrays as a brooding obsessive who wants to kill the elderly Caulfield: “I made him once. I cast him in my own blood. In a way he is my son, my property. I won’t mourn him when he’s gone. . . . ! intend to be fast and swift. My time is runnIng out, and I wIll leave nothing to chance.”
Salinger’s lawyers call Colting’s book “a rip-off pure and simp~e.” Colting’s lawyers insist that it’s a work of parody and Irreverent literary criticism and therefore constitutes a fair use of Salinger’s work. Salinger won the first round of the legal fight. A federal judge in New York ruled in his favor and banned publication of “Sixty Years Later.” Colting’s law- yers are determined to appeal the case. The dispute may proceed all the way to the Supreme Court. Along the way, it may redefIne some elements of the bizarre legal contraption that has become U.S. copyright law.
Aaron Silverman runs SCB Distributors from a large warehouse in the smoggy suburbs south of Los Angeles. SCB distributes books in the United States for Nicotext, Fredrik Colting’s Swedish publishing company. Most of Nicotext’s titles are snarky treatments of celebrities and popular culture – fluffy, but witty and well-produced. Colting, who’s in his 30s but comes off as ten years younger, seems every bit the university-bred pop culture and pop art enthusiast. He blends bits and pieces of culture into new, postmodern works of art. Nicotext’s mission statement reflects these enthusiasms: “While thumbing our collective nose at the literati, we have found our niche amongst the useless, the trivial and the potentially offensive.”
In the shrinking world of bookselling, SCB has been a growing force. It handles a diverse list of art books and other quirky fare. Nicotext’s titles fit well in the mix. (Disclosure: SCB also distributes most of my books – which are not art titles – and Silverman has been a personal friend for more than a decade.) While not obviously political in any party sense, Silverman has a businessman’s preference for clarity and logic. And he’s a hunter. He’s worked in the publishing industry in various capacities since he got out of college some 30 years ago; he knows the practical details of the business and always has an eye out for promising projects.
About two years ago, Colting told Silverman that he’d published his own first novel, “Sixty Years Later.” Colting was already selling the book in Sweden and the UK under the pseudonym “John David California.” He wanted to know whether Silverman thought the book might work in the United States. Silverman asked for a copy; he read it and asked his wife to read it, for a second opinion. They both thought it was brilliant. Silverman met with Colting at the London International Book Fair and agreed to give “Sixty Years Later” a big launch in the United States. While technically Colting’s distributor, Silverman and SCB would be acting, effectively, as publisher, since the author planned to remain in Sweden.
Silverman started seeding publicity for the book at the London Fair. Getting interest in the project wasn’t difficult. Media people were interested in anything related to Holden Caulfield. It was about this time that Salinger’s attorneys in New York got wind of the new book.
The sales cycle in book publishing turns slowly. Late in 2008, Silverman announced “Sixty Years Later” to SCB’s sales representatives and made preparations for a spring 2009 publication date. Last April, he was served notice at his warehouse office that he was being sued. The law firm was Davis Wright Tremaine out of New York; the plaintiffs were J.D. Salinger and the J.D. Salinger Literary Trust.
Salinger has developed a reputation for litigiousness that rivals his reputation as an author. Upon learning in 1986 that the British writer Ian Hamilton intended to publish a biography that included letters Salinger had written to various friends (the friends had given Hamilton permission to use the letters), Salinger sued to stop the book’s publication. A New York court ruled that Hamilton’s extensive quotations and paraphrases from the letters went beyond the limits of fair use and that “the author of letters is entitled to a copyright in the letters, as with any other work of literary authorship.”
Hamilton’s book was eventually published, with the letters lightly paraphrased and alluded to. It was pretty thin stuff. But one consequence of the lawsuit was that some details of Salinger’s private life, including the news that he had spent 20 years writing a novel he didn’t intend to publish, became public. A few excerpts from the disputed letters also became public – most famously, an imaginary scene in the life of Oona O’Neill, whom he had once dated, and her husband Charlie Chaplin: “I can see them at home evenings. Chaplin squatting grey and nude, atop his chiffonier, swing- ing his thyroid around his head by his bamboo cane, like a dead rat. Oona in an aquamarine gown, applauding madly from the bathroom.”
In 1998, the writer and cultural oddity Joyce Maynard released a wide-ranging memoir of her own life. What interested others was principally the affair that she had had with Salinger, 25 years before. Familiar with the outcome of the Hamilton case, Maynard was coy about the letters that Salinger had written her. She implied that she would include them … but remained vague about how much of them. She wanted to avoid a lawsuit from Salinger that would prevent her book from being published.
Maynard has built a minor literary career on multiple memoirs and egocentric journalism. It’s curious that Salinger, so protective of his privacy, got involved with a fundamentally indiscreet woman.
In the end, Maynard didn’t publish the complete texts of Salinger’s old mash notes. But her book did include personal details, such as the practically obligatory ones about sex. More relevant to Salinger’s notion of creative control; she remembered him telling her, “When they start in on your characters – and they do – it’s murder.” This passage may have given Fredrik Colting the idea of his “Salinger” trying to murder the elderly version of Holden Caulfield.
While Maynard didn’t publish Salinger’s love letters, she did come up with a cagey way of using them. The letters themselves, the physical things, belonged to her. So, in a move designed to help the promotion of her book, she put 25 of the letters up for auction. Software magnate Peter Norton bought them and announced his intention to return them to Salinger.
Of the matter, Norton said: “I share the widely expressed opinion that the work should be bought by someone sympathetic to Mr. Salinger’s desire for privacy.”
This is an interesting point. What Salinger appears to seek in his aggressive use of copyright law is really something different from the “Science and useful Arts” that the Constitution describes. It’s privacy, which readers of Liberty (and careful
One consequence of the lawsuit was that details of Salinger’s private life, including the news that he had spent 20 years writing a novel he didn’t intend to publish, became public.
readers of the Constitution) know is a much subtler proposition. His lawyers would later use privacy as a foundation of their notion of copyright: “There are three underpinnings of the copyright law. There is to foster the creation of works, there is to provide economic incentives for authors, and there is the right to privacy. The right to privacy rests in the right of first publication and it rests in the right to control derivatives.”
This is an interesting theoretical argument, but it’s not one that holds up well to practical application. Or rigorous legal analysis. Lawyers and judges like to link privacy to such abstruse legal concepts as “penumbras” and “underpinnings,” but such shady foundations don’t support the conclusion reached consistently by American courts: copyright law can’t be manipulated into a tool for making privacy claims. The 1988 district court decision New Era Publications v. Henry Holt & Co. made this point plainly: “It is universally recognized … that the protection of privacy is not the function of our copyright law.”
When word got out that Colting, Silverman, and SCB had been sued by Salinger, intellectual property lawyers from all parts of the country called, offering to mount a defense. Silverman ultimately made an entrepreneurial deal with Edward Rosenthal of the New York law firm Frankfurt Kurnit Klein & Selz. In exchange for a much-reduced retainer and a percentage of any future sales of “Sixty Years Later,” Frankfurt Kurnit agreed to press the book’s case all the way to the Supreme Court, if necessary.
Rosenthal and his firm are well-known in the intellectual property bar. They defended the author and publisher of “The Wind Done Gone,” a book that ingeniously retold the story of “Gone with the Wind” from the perspective of a slave. The heirs of Margaret Mitchell sued to block publication of that book. Rosenthal helped defeat their arguments and see the book into print.
Most IP lawyers – like most lawyers of any specialty – spend the bulk of their days reviewing transactions and trudging through contracts. They look forward to cases that involve live issues. Salinger v. Colting et al. involved live issues.
The trial was set for June 17, 2009. With Colting remaining in Sweden, Silverman and his wife flew to New York so they could be in the courtroom to watch the proceedings firsthand. If their side prevailed, “Sixty Years Later” would go into print immediately; if it didn’t, it would join “Ulysses” and “Tropic of Cancer” on the list of books that have been banned in the United States.
On the morning of the 17th, the lawyers took their places in the federal courthouse in Manhattan. (Salinger, following his standard practice, didn’t attend.) Rosenthal represented Colting, Silverman, and JlSixty Years Later.” Marcia Paul of David Wright Tremaine represented Salinger. There was no jury; a judge would decide the case. That judge was Deborah A. Batts, a Clinton appointee, a Harvard Law School graduate, and – according to a biography published on the website of the National Black Justice Coalition – “the first openly lesbian African-American federal judge.”
Silverman hoped that Batts would be sympathetic to a scrappy, small press’ case against a literary giant. Indeed, one of the theories offered in defense of affirmative action pro- grams is that outsiders (say, black lesbians who get through Harvard Law) given access to society’s citadels of power will bring fresh perspectives and heterodox beliefs to staid institutions. The truth, however, is more often the opposite: the out- siders often become the most orthodox and narrow-minded purveyors of institutional pabulum. And that pretty well describes the legal reasoning that Deborah Batts would use.
Salinger’s lawyers made two separate claims for copyright infringement: one of the book “The Catcher in the Rye” and another of the character Holden Caulfield. Colting’s lawyers acknowledged a legitimate copyright claim in the book, but doubted that the character qualified. To this doubt, Salinger’s lawyers replied: “We go back to Judge Hand in the Sheldon case, back in the’40s, saying that a fully delineated character
One defense of affirmative action is that out- siders given access to society’s citadels of power will bring fresh perspectives to staid institutions. The truth is more often the opposite.
can be protected under copyright law…. despite the fact that [Colting’s lawyers] admit he is an iconic character, despite the fact that their fair use depends upon Mr. Holden Caulfield existing qua Holden Caulfield, they argue that he is not sufficiently delineated to be entitled to copyright protection.”
This argument brought up an important point, though perhaps not the one intended. Copyright lawyers still cling to precedent decisions from 70 years ago (attorney Paul was wrong about the date of the Sheldon decision; it was from 1936) to discuss intellectual property issues today.
Learned Hand was a genuine, profound thinker. Knowledgeable people say he was the smartest American judge who never made it to the Supreme Court. (Robert Bork and Richard Posner may disagree.) He was certainly one of the best writers ever to sit on a court bench in this country. His decisions are coherent, intellectually dense, and literary without being flashy. His often-cited decision in Sheldon v. Metro-Goldwyn Pictures dealt with a movie based on a popular play, which was itself based on a novel taken from actual events. The movie producers (including the esteemed Irving Thalberg) didn’t pay Sheldon, the playwright, because they argued that no one could copyright the facts of the story. The trial court agreed with the movie people.
In his appeals decision, Hand ably retells the various versions of the story. He also coins a not-as-good-as-it-is-famous metaphor about a lesser poet inadvertently rewriting John Keats’s “Ode on a Grecian Urn.” These days, the Keats reference gets most of the attention from lawyers desperate to seem literary; but there’s better writing in other parts of the decision:
Speech is only a small part of a dramatist’s means of expression; he draws on all the arts and compounds his play from words and gestures and scenery and costume and from the very looks of the actors themselves…. [A] nod, a movement of the hand, a pause, may tell the audience more than words could tell. . . . True, much of the picture owes nothing to the play [but] it is enough that substantial parts were lifted; no plagiarist can excuse the wrong by showing how much of his work he did not pirate.
Hand sided with the playwright and overturned the trial court’s ruling. The Supreme Court looked at the case and agreed with his conclusion. In Sheldon – and another copy- right decision from about the same time, involving a different stage play – Hand recommended comparing the similarities between two works as a “series of abstractions” of increasing generality. If the similarities pass beyond the point of mere ideas and into the “realm of expression,” there is infringement.
This standard is still used by judges today. And that’s a problem. The “series of abstractions” test assumes that writ- ten works are static things. Electronic media are more fluid; and, in an electronic age, even printed pages are subject to revision, correction, and update in a manner inconceivable to
This 70-year-old standard is still used by judges today. And that’s a problem. The test assumes that written works are static. Electronic media are more fluid.
and meta-narratives that have became standard media structures. Marcia Paul and Salinger’s other lawyers were using 70-year-old legal tools to make backward-looking arguments.
Colting’s lawyers focused on the “fair use” defense of “Sixty Years Later.” Their case included a declaration by Martha Woodmansee, a professor of English at Case Western Reserve University, who argued that “Sixty Years Later” was a work of “meta-commentary” that broke apart the elements of an existing work and reassembled them into a “more complex” work of literary criticism.
Judge Batts didn’t agree with this argument (though she insisted she hadn’t read Woodmansee’s declaration) and proceeded to interrupt Rosenthal with a series of adversarial statements masquerading as questions. The effect was something like a TV or movie melodrama (think of the slightly crooked judge in the great Paul Newman-Sidney Lumet movie “The Verdict”):
Rosenthal: [T]he constitutional underpinnings of the copy- right law say that it is to promote the progress of science and the arts and then securing for limited times to authors and inventors the exclusive right to their respective writings. So there is this element of promoting the arts and sciences.
Batts: But it is not stealing them.
Rosenthal: I strongly disagree that there is any stealing here. [Colting’s book] is designed as a critical commentary on the relationship between J.D. Salinger and the character he created.
Batts: How is it criticism?
Rosenthal: How is it criticism? … [W]e have an author, J.D. Salinger, who has become famous for being reclusive, and there is much discussion that … he’s never been able to write anything else, maybe because he feels he can never live up to his original creative ability, maybe because he is afraid of criticism. This book goes through and analyzes that relationship between the author and the character he created.
Batts: But I thought that the critical commentary has to be on the work, not the author.
Rosenthal: It is on the work, it is on the author, it is on the character. It is on all of those things….
Batts: But do people need [Colting’s] version in order to view the story differently?
This is one of the reasons why Oliver Wendell Holmes warned that it’s a “dangerous undertaking” for judges in copy- right cases to play at art criticism. Batts’ low opinion of “Sixty Years Later” shouldn’t have entered her reasoning. American courts have ruled – consistently, over many years – that fair use shouldn’t depend on a judge’s perception of a work’s merits. One example was decided in Batts’ own courthouse. The 1992 Manhattan district court decision Yankee Publishing v. News America Publishing held: “First Amendment protections do not apply only to those who speak clearly, whose jokes are funny, and whose parodies succeed.”
Exceptional thinkers like Learned Hand can sort through literary abstractions; petty bureaucrats like Deborah Batts can’t. The literal, insistent intelligence of the law clerk, which works in the classroom or in reviewing contracts, doesn’t see deeply into intellectual properties.
While Colting’s lawyer and the judge bickered over the nature of literary criticism, Salinger’s lawyer was poking holes in her own argument:
“Let’s talk about what it means to be transformative. Transformative means . . . in the words of the Supreme Court: To take an original work and to somehow imbue it with new meaning, message, or purpose; to provide some- thing more for the public…. Speaking in fair-use terms, the first question is, is this transformative of the original, as the court said, either of the character or of the work. Mr. Salinger is not a character in “Catcher in the Rye.” The fact that they injected Mr. Salinger into this novel does have some transformative value. Some. Limited.”
According to the body of precedent decisions, if there’s any transformative value in a critical work, that part of the case for fair use of the underlying work is made. Rosenthal pointed this out, noting that Salinger’s attorneys had admitted “a colorable fair-use argument” and that, therefore, Batts shouldn’t ban the book. To do so would constitute prior restraint, a judicial abuse that would raise “very serious First Amendment issues.”
But Batts wasn’t about to be swayed by logic or the law. A week later, proving herself little more than a clerk with a Harvard degree, she issued an injunction preventing “Sixty Years Later” from being published within the United States – her arrogance rendered ridiculous by the ease with which anyone in the United States could buy a copy of the book. The British edition is readily available on a Kindle ebook reader and can be obtained with only modest effort from any number of online booksellers. Courts aren’t as able to ban books as they used to be, and that’s a good thing.
Batts may have expected cheers from the establishment media, but she didn’t get them. In a June 25 op-ed piece, the Los Angeles Times concluded: “Salinger’s protectiveness of his work isn’t just stand-up, it veers into the paranoid, mer- curial and even delusional. … [T]he ‘Sixty Years Later’ suit, while not surprising, seems somehow sadder than the previous legal actions. There’s a sense that Salinger might not have a grasp on exactly what he’s objecting to and why…. Maybe Salinger is holding on to Holden a little too tightly.”
Several media outlets noted that Stanford University law professor Lawrence Lessig has argued that, unless copyright law is reformed, it will end up, ironically, by stifling creativity, particularly in an age of digital art and meta-commentary. Lessig’s arguments for a broad definition of “fair use” and copyrights limited in both scope and duration, considered anarchic a few years ago, are gaining currency. Colting’s law- yers appealed. And the 2nd Circuit Court of Appeals agreed to an expedited review of the decision.
Copyright law is an interesting test of libertarian principles because it involves conflicting values, both of which are dear to lovers of liberty: the property rights of creative people and the free market in ideas and expression. Generally, copy- rights protect intellectual property rights. This protection is a public good, specifically described by the Constitution’s Copyright Clause, which charges Congress “to promote the Progress of science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
A clear system of copyright provides precisely the kind of order that makes a social contract worthwhile. Anarchy stifles commerce, especially commerce based on innovation and expression. If you can’t bring your goods to market with some level of reliability and safety, you’ll stay at home. By extension, if an artist can’t maintain some control over the work he brings to market, he’ll ‘ keep it to himself (as, apparently, Salinger has done with his writing over the last few decades).
But artistic works aren’t products like other products. Literary characters aren’t apples or better mousetraps. They have value beyond their immediate application. In the cases of characters like James Bond or Harry Potter, they have cultural and commercial value far greater than the sales of a particular book. In a media-saturated society, literary icons hav real economic value. For example, if the maker of a premium vodka created advertisements in which a suave man claiming to be James Bond said he drank that brand, it might very well sell more product. But the estate of Ian Fleming would have a claim for unauthorized use of its intellectual property. Less hypothetically, J.K. Rowling’s lawyers have sued numerous authors and publishers for producing unauthorized dictionaries and encyclopedias based on the Harry Potter stories.
This is the reason why some European countries – most notably, France – have codified so-called “moral rights” in creative works. These special rights give artists and creators
Anarchy stifles commerce. If an artist can’t maintain some control over his work, he’ll keep it to himself.
of intellectual property far-reaching control over how their works are used, even after the works of art or specific rights to reproduce the works have been legitimately sold, licensed, or transferred to others.
Although they talk about “privacy” and “characters,” Salinger and his lawyers are essentially trying to bend existing (and, compared with the Europeans,’ humbler) U.S. copyright laws to support a “moral rights” argument. This argument may seem merely theoretical, but it runs directly into Lessig’s practical case for reform of copyright law to allow more”fair use” and meta-commentary.
And the effects aren’t just theoretical. The markets for intellectual property have changed dramatically during the past 20 years. Record companies have become less important to the distribution of music; today, many popUlar musicians make more money licensing their songs for use in the “Guitar Hero” video games than they do from selling CDs or tapes. Film studios are terrified of losing their control over how movies are distributed and have been key supporters of the steady extension of standard copyright periods. (Specifically, the Wait Disney Co. has fought hard – and effectively – to maintain its control over Mickey Mouse, Donald Duck, and their iconic fellows.) The economic model of book publishing is strange and getting stranger as ebooks gradually replace paper and ink. Increasingly, books exist as a kind of test market for television and film projects.
Three recent series of bestselling books – Dan Brown’s conspiracy-laden Robert Langdon thrillers, J.K. Rowling’s Harry Potter boy-wizard fantasies, and Stephanie Meyer’s “Twilight” vampire romances – share traits that reflect the chaotic nature of literary properties. All three started as unlikely hits that incorporated familiar dramatic structures and tropes. All three have been made into popular films. And all three have been charged with lifting plot-lines and characters from other, less commercially successful, books.
Critics are split on this derivative work. Some embrace artistic borrowing that arises out of developments in post- modern literary theory or practice as “literary rewriting.” These works knowingly draw on famous characters, plots, scenes, and even words. Highbrow examples include Jean Rhys’ “Wide Saragasso Sea,” a novel that rewrites “Jane Eyre” from the perspective of Rochester’s mad wife, and Tom Stoppard’s “Rosencrantz and Guildenstern are Dead,” an absurdist play that appropriates both characters and lines from Shakespeare’s “Hamlet.”
Others point to Dan Brown’s bestsellers and the money-grubbing lawsuits surrounding them as the logical result of a postmodern, meta-narrative world. “New” stories are derivative rehashes of existing plots and characters. Hollywood, which has never placed a high value on originality, nefariously influences all literary pursuits. And the literary world is a dumbed-down version of its former self.
But there may not be as much modern in all this postmodernism as intellectuals think. As early as 1845, Justice Joseph Story, riding (literally, on his horse) as a circuit justice in the copyright infringement case Emerson v. Davies, wrote: “In truth, in literature, in science and in art, there are, and can be, few, if any, things, which, in an abstract sense, are strictly new and original throughout. Every book in literature, science and art, borrows, and must necessarily borrow, and use much which was well known and used before.”
So, we arrive again at the matter of fair use. In legal terms, this kind of use prevents narrow copyright claims from over- whelming First Amendment principles of free expression. It gives special preference to transformative works that enrich the marketplace of ideas by modifying existing works so as to generate new aesthetics and new insights.
In an amicus brief filed in support of Colting’s appeal, a group of book-related organizations led by the American Library Association (ALA) argued:
“In enjoining the publication of “Sixty Years Later,” the District Court committed serious errors with a profound impact on free speech rights…. Courts must be especially wary of issuing injunctions against expressive works as to which there may be, after a full hearing, a viable fair use defense. In its rush to enjoin [Colting’s book], the District Court ignored the free speech interests of the author and the public…. Prior restraints on speech are strongly dis- favored precisely because they have the potential to cause grave damage to free speech rights.”
The matter of “prior restraint” is one of special importance to libertarians, and for more than just its chilling effect on First Amendment free speech. It is a sign of judicial excess. Small- minded judges take a peasant’s pride in their ability to grind through the minutiae of specific legal disputes. But the marketplace of ideas is more important than any single copyright claim. The First Amendment protects more than just the right to speak freely; it also protects the right to receive information. This right is rooted in the fundamental public interest in a free and open exchange of ideas and information.
There’s strong legal precedence for this. According to the 1945 Supreme Court decision Associated Press v. United States, the First Amendment “rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public.” Following this logic, some works – even when they appear to infringe on others – should still be allowed into the market- place of ideas. In its 1994 decision Campbell v. Acuff-Rose Music, Inc. (involving the rap music act 2 Live Crew’s unauthorized remake of rocker Roy Orbison’s song “Pretty Woman”), the Supreme Court stated that caution is necessary in granting injunctive relief in cases “involving parodies or other critical works.”
On this point, the ALA group hammered Batts’ evident inadequacies as a legal thinker and literary critic: “The district court’s error was to confuse Colting’s act of literary rewriting – which involves conjuring the memory of Holden in the reader’s memory to achieve a literary effect – with the lifting of actual expression, as in the case of plagiarism or piracy. Under copyright’s idea-expression distinction, only the expression receives protection, not the shared cultural memory.”
The “idea-expression distinction” is an important balance in the copyright system. Providing legal protection to artistic works encourages creativity by assuring an artist the exclusive benefit of whatever commercial success his or her work enjoys during some period of time. But if authors fear their creations will too readily be found substantially similar to preexisting works, they will be less likely to create new works. Courts can adjust the tension between these competing effects of copyright protection. By framing the legal questions of the case around Salinger’s interest in leaving his artistic vision untouched, Judge Batts injected loosely defined, French-style moral rights into fair use law – even though such rights are not part of U.S. copyright law.
Separate from the ALA group, the left-leaning legal advocacy group Public Citizen, Inc. filed an amicus brief in support of Colting and SCB. Public Citizen’s arguments focused on the mechanical matter of whether literary characters can be protected by copyright:
“The district court’s conclusion that Salinger holds a copy- right in Holden Caulfield wholly apart from the fixed expression of the novel itself – a general right to prevent others from conjuring up readers’ memories of his iconic character – not only runs afoul of the purposes and constitutional limits on copyright but is foreclosed by the Copyright Act itself.”
Groups like Public Citizen don’t start out intending to make libertarian arguments when they file these amicus briefs on major legal issues. They end up sounding like libertarians because, in cases like this one, they make logical arguments based on evident points of law. (If only they made logical arguments all the time.) Under the 1909 Copyright Act, a fictional character might arguably have achieved copy- right protection as a “component part” of a work. But, in the revised 1976 Copyright Act, Congress did away with separate copyright protection for components of works. Under current law, copyright protection extends only to “original works of authorship” that are “fixed” in a “tangible medium of expression.”
Graphically-depicted characters qualify separately under the Act’s inclusion of “pictorial, graphic, and sculptural works” (a careful reader can detect in this language the influence of the film industry) in the definition of “protectable works of authorship.” Purely literary characters, however, are not “protectable.”
Salinger’s actions worked against his own sense of privacy.If he had licensed a film version of his Holden Caulfield, he might have had more control of how the character was portrayed.
Aaron Silverman is the point man in the dispute with Salinger. And he’s the human face of the case. Fredrik Colting remains in Sweden, and Salinger nurses his legally-dubious sense of privacy in rural New Hampshire. So, Silverman ends up as the only party to the lawsuit who actually shows at the hearings. Hell be there for the appeals court hearing. And for the Supreme Court hearing, if there is one.
And there probably will be. The appeals decision, whether it favors Colting or Salinger, is likely to be an interim step. Both sides are determined to push the case to the Supreme Court. And the high court will want to hear the case; some consistency needs to be established among the 1976 Copyright Act, its several modifications, and appositive laws like the Digital Millennium Copyright Act. Congress’ efforts to refine U.S. copyright law have only created more confusion.
Unlike a lot of legal mumbo-jumbo that we hear about in courtrooms today, copyrights are described explicitly in the Constitution. Yet they conflict with the broader values implicit in the First Amendment. To adjust tensions between narrow copyrights and broader First Amendment rights, courts use tools that include fair use and the idea-expression dichotomy. But sometimes even these tools aren’t enough.
When copyright legislation was first passed in the United States in 1790, the term of copyright lasted for 14 years, with the option of renewal for another 14. The law’s primary function was to ensure that authors could profit from the sales of their own work, not control other authors’ reactions for decades on end.
Today, a work is under copyright for the author’s lifetime plus 70 years (or 120 years for works of corporate authorship). These are standards that favor big corporations and institutional hacks. An elegant solution would be to return to the original 14 years, plus optional 14-year renewal.
Yale University law professor Jed Rubenfeld has put a finer point on why books like Colting’s should be allowed into print: “We don’t suppress books in this country. Courts have no authority to suppress a book on the ground that its exercise of imagination is harmful and unauthorized. To do so violates the First Amendment – period.”
Fredrik Colting believes that “Sixty Years Later” is a legitimate, postmodern criticism of “Catcher in the Rye,” its main character, and its creator. Aaron Silverman agrees that the book has an important message … and that it will sell well, once published. J.D. Salinger wanted to stop them from start- ing in on his characters. And he wanted the courts to support his brand of privacy. But one anonymous online commenter made the free-market argument against Salinger’s position: “Salinger should’ve let this book die a natural death, stem- ming from poor sales, rather than generating tons of free publicity for it.” He might even have seen Colting’s book as good advertising for his own.
Epilogue:
I expected that any epilogue to this story would involve some higher-court ruling on the case. Instead, the litigious plaintiff passed away. Salinger died of natural causes in late January at his farm in New Hampshire. He was 9l. His obituaries were many and passionate.
How this will affect publication of “Sixty Years Later” remains to be seen. Under current copyright law, Salinger’s literary estate will be able to control the rights to Holden Caulfield and other Salinger characters for most of this century. But it’s hard to imagine that other people – even his widow or others near and dear to him – will pursue the stubborn legal strategies and notions of “privacy” that meant so much to the man.
A final testament to Salinger the litigant might be that, although his notions of privacy were eccentric, his several lawsuits clamping down on biographies, memoirs, and satires contributed to the warping of copyright law (and other forms of intellectual property) into the mess that it is today. Now that he’s gone, it may be a little easier to restore copyrights to something more like the pro-commerce mechanism that the Constitution envisions.
