Intellectual Property vs. Creative Freedom

Can J.D. Salinger stop a Catcher in the Rye sequel?

Cathy Young | June 25, 2009

Can the authorities in a free country ban a book? Surprisingly, the answer is yes: last week, a federal judge in New York imposed a temporary restraining order on the publication of a novel called 60 Years Later: Coming Through the Rye. At issue is a copyright infringement lawsuit by J. D. Salinger, author of the 1951 classic Catcher in the Rye. In a few days, the judge will decide whether to make the ban permanent. In the meantime, the case highlights the conflict between intellectual property rights and First Amendment rights—between copyright and creative freedom.

There is no question that 60 Years Later, written by Swedish humorist Fredrik Colting under the pen name "John David California," is based on Catcher in the Rye. The hero, Mr. C., is clearly the alienated teenager Holden Caulfield, now an old man (who leaves a retirement home to go to New York, echoing Holden's flight from boarding school). A few other characters from the Salinger novel also appear, along with original ones—and with Salinger himself. Indeed, on the copyright page, the book is described as "An Unauthorized Fictional Examination of the Relationship Between J. D. Salinger and his Most Famous Character."

Now, the court must decide if 60 Years Later falls under the "fair use" exception to copyright law. Is it an unauthorized sequel (red light), or a commentary or parody (green light)? Does it merely appropriate and continue the work, or transform it in a way that illuminates the original?

Salinger's lawyers have claimed that the new book is "a rip-off pure and simple." But there is nothing simple about intellectual property law. Some things are fairly straightforward: a pirated edition of a book or an illegal DVD of a movie cuts into the revenues of the author or the producers. But a new work that builds on an earlier one can boost the sales of the original, particularly if it creates controversy. Film and television studios have sometimes gone after fan-made music videos based on TV shows and movies and posted on websites such as YouTube, even though such videos have inspired quite a few people to buy DVDs of the movies or shows.

Some areas of copyright law are so murky that no one quite knows what is and is not legal. There are intellectual property experts who believe that fan-written fiction based on popular works, from Star Trek to Harry Potter, qualify as "fair use" as long as it's non-commercial. (Full disclosure: I have written fan fiction as a hobby.) No one knows for sure because there are no significant court rulings on the issue. And even with commercial works such as 60 Year Later, the concept of fair use is rather subjective, requiring judges to briefly don the mantle of literary critics.

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, moreover, was to ensure that authors could profit from the sales of their own work, not control any work that could be derivative. Today, after numerous extensions, a work is under copyright for the author's lifetime plus 70 years—or 120 years for works of corporate authorship.

The U.S. Constitution authorizes Congress to enact copyright laws "to promote the progress of science and useful arts"; the Copyright Act of 1790 mentions "the encouragement of learning." Yet copyright law in its present form often seems to do the exact opposite. A few years ago, Margaret Mitchell's estate tried to stop the publication of a novel called The Wind Done Gone retelling Gone with the Wind through the eyes of a black slave. The grandson of James Joyce, Stephen Joyce, has used his position as administrator of the writer's estate to terrorize scholars, block the staging of a play by Joyce and readings from his work at a festival, and kill a multimedia project based on his grandfather's famous novel, Ulysses.

Borrowing is an essential part of the creation of culture. If we eliminated all derivative works, we would lose, among other things, Shakespeare's Romeo and Juliet (based on a story by an Italian writer), and Jean Rhys's acclaimed novel Wide Sargasso Sea, the story of Mr. Rochester's mad wife from Charlotte Bronte's Jane Eyre. Of course, classics have also inspired mediocre sequels or reimaginings, such as third-rate novels that continue the story of Elizabeth and Mr. Darcy from Jane Austen's Pride and Prejudice. But that's for readers to decide.

Stanford law professor Lawrence Lessig has argued that unless copyright law is reformed, it will end up stifling the creativity of a generation, particularly in the age of digital art. At the very least, the law should focus more on whether the copyright holder suffers actual economic loss, or be denied rightful gain, because of the infringement. As for restricting the use of one's character or story by other artists of writers, it seems fair that, like the right to sue for libel, this right should be terminated by death. (Personally, I would support a term of 50 years, with a portion of revenues from any derivative work published thereafter going to the original author.)

As for 60 Year Later, which is already published in Great Britain—bring it on. Its concept seems far more creative than a mere sequel, and if the courts must err, they should err on the side of free speech. Ironically, one of the themes explored by "J.D. California" is Salinger trying to kill "Mr. C.," in a futile attempt to regain control over his creation. We will see if the real Salinger succeeds in this endeavor.

Cathy Young is a contributing editor at Reason magazine. She blogs at http://cathyyoung.wordpress.com/. This article originally appeared at RealClearPolitics.

Comments

Paul|6.25.09 @ 6:08PM|#

Threadjack: Michael Jackson is dead, according to TMZ. CNN hasn't confirmed.

|6.25.09 @ 6:15PM|#

"He's coming to get you, Barbara..."

|6.25.09 @ 6:16PM|#

Not Michael Jackson!!!

Off The Wall was the best album, like, ever.

Gil|6.25.09 @ 6:18PM|#

"Creative Commons is a nonprofit corporation dedicated to making it easier for people to share and build upon the work of others, consistent with the rules of copyright."

http://creativecommons.org/

|6.25.09 @ 6:19PM|#

This article was sadly lacking in Michael Jackson content.

And yes, I did see your post, Jaybird.

BakedPenguin|6.25.09 @ 6:23PM|#

The advocates of copyright are its worst enemies. That those who create should have a relatively short exclusive monopoly on their creation shouldn't be that controversial. But shit like this, Disney's demand for perpetual rights, the RIAA demanding $80,000 for each $.99 song taken undermines IP with sheer stupidity and cupidity.

Makes me want to go create an updated version of Air Pirates, only with more obscenity.

Rich|6.25.09 @ 6:24PM|#

"Good artists copy/borrow; great artists steal." -- Me

|6.25.09 @ 6:28PM|#

BP,

I'm an advocate of copyright; I'm just not an advocate of nutjob levels of copyright.

|6.25.09 @ 6:29PM|#

BP,

By the way, I've come up with a new tax reform proposal involving. . .repo men.

|6.25.09 @ 6:33PM|#

The Communist News Network is reporting he's in a coma!

Pull through, Michael!!!

WE NEED ANOTHER SMOOTH CRIMINAL!!!!

BakedPenguin|6.25.09 @ 6:36PM|#

PL, me too. That's why it's frustrating to see it essentially become an avenue for rent-seeking and crushing original thought. Outside of the people who profit from it, and the congresswhores they've purchased, I can't see anyone legitimately arguing that current copyright protections aren't overly broad.

BakedPenguin|6.25.09 @ 6:37PM|#

Also, your tax reform proposal will help America's collective IQ. The more you drive, the less intelligent you are.

|6.25.09 @ 6:38PM|#

Looks like he's really dead. The LA Times is reporting his demise.

|6.25.09 @ 6:39PM|#

BP,

I'm an idiot. I not only left that out of the post, but I used that exact quote in the comments to my post. Dammit! I will amend.

BakedPenguin|6.25.09 @ 6:41PM|#

PL, You've been driving too much.

Tricky Prickears|6.25.09 @ 6:41PM|#

By the way, I've come up with a new tax reform proposal involving. . .repo men.

Damn, keep that shit to yourself. We don't want to give anyone any ideas!!!

EJM|6.25.09 @ 6:41PM|#

FWIW, the full Google News story cluster on MJ is here. (It looks like CNN is now also reporting that he has died.)

Paul|6.25.09 @ 6:43PM|#

CNN talks to the publicist, Tariq Aziz. TMZ talks to the gardner, the nurse who was in the room when he was pronounced, and the switchboard operator. I go with TMZ.

EJM|6.25.09 @ 6:45PM|#

(It looks like CNN is now also reporting that he has died.)

Actually, it looks like CNN hasn't confirmed it yet--although the AP apparently is reporting that he has died.

|6.25.09 @ 6:45PM|#

No, I want them to adopt my plan. Because I want to be a repo man. Repo men are consummate libertarians. Repo man don't go running to the man. Repo man goes it alone.

An ordinary person spends his life avoiding tense situations. A repo man spends his life getting into tense situations.

Grandpa Whithers|6.25.09 @ 6:46PM|#

RE Michael Jackson: There is a crowd growing around the UCLA Medical Center. They the gathering impacts four square blocks. The crowd is anything but threatening.

The news says that at least four helicopters are monitoring the crowd from above.

Why the hell do they need to do that???

|6.25.09 @ 6:47PM|#

Because when Michael Jackson dies, the city explodes.

You thought Rodney King was bad?

Mister DNA|6.25.09 @ 6:49PM|#

Why the hell do they need to do that???

Grieving crowds are probably low level terrorism, too.

Grandpa Whithers|6.25.09 @ 6:49PM|#

Kidding, right?

Tricky Prickears|6.25.09 @ 6:53PM|#

Because I want to be a repo man.

Fair enough. But stay away from cars with glowing trunks!

Grandpa Whithers|6.25.09 @ 6:55PM|#

Off topic, but good.

http://www.ibdeditorials.com/CartoonPopUp.aspx?id=330295540345489

|6.25.09 @ 6:59PM|#

I don't see where there are conflicts between the first amendment and copyright. You are entitled to speak or publish all the original speech you want. But a law that simply recognizes the property rights inherent in someone ELSE's expression is no law "restricting freedom of speech, or of the press."

That said, I do believe that the "limited time" provision of the US copyright clause has been seriously abused, if not egregiously flouted, in the last century. As more and more ideas, figures of speech, motifs and other essences of artistic expression find popularity and achieve pervasiveness in our culture, it becomes harder and harder to express oneself without appealing to those items of intellectual property. So, to protect and promote our intellectual "commons," it is important for ownership of those items to pass into the public domain after a decent interval. As Salinger is still alive, I think his copyright to Catcher should remain valid, and any homages that aren't sufficiently original violate that copyright. But once he is gone, open season. The idea that deathless corporations can hold copyrights in perpetuity (or effectively so, long past the lifetimes of the creators) is reprehensible and counterproductive, imho.

|6.25.09 @ 7:21PM|#

Who is that guy in the photo? I know it from somewhere... ?

|6.25.09 @ 7:24PM|#

"For Esmé--With Love and Squalor" is my favorite. With the manic frantic of "Franny" coming in a close second.

B|6.25.09 @ 7:55PM|#

"Off The Wall was the best album, like, ever."


Yeah, maybe if your listening experience is limited to Duran Duran and Men Without Hats.

Alan Vanneman|6.25.09 @ 8:43PM|#

Cathy Young zzzzzzzzz ugly old bald guy zzzzzzzzzzz I give up. Holden, baby, let's go check out the tits on the Indian babes in the American Museum of Natural History. Some things just don't get old.

perilisk|6.25.09 @ 10:21PM|#

"I don't see where there are conflicts between the first amendment and copyright. You are entitled to speak or publish all the original speech you want. But a law that simply recognizes the property rights inherent in someone ELSE's expression is no law "restricting freedom of speech, or of the press."

Oh, you missed it, the conflict was right there where you added the word "original" and assumed your conclusion. Exceptions for "unoriginal" speech are no different than exceptions for "hate" or "obscene" or "unpatriotic" speech, aside from the (significant) fact that they are explicitly allowed in the constitution.

However, unoriginal speech is too common to consistently suppress, and failure to apply copyright is fairly subjective. Whether it's a well-worn joke, an internet meme, or a quote by a world leader, none of these are original; where would society be if we had to check that everything we say had never been said before? The very existence of "fair use" is intended to mitigate the conflict between expression and ownership (such that excerpts of works can be copied without permission for the sake of criticism or parody).

Mike|6.25.09 @ 10:22PM|#

Did someone say there were tits?

Wicks Cherrycoke|6.26.09 @ 8:04AM|#

Let's face it. Copyright law has become a tool for extorting monopoly rents from consumers rather than a means of encouraging creativity. Period.

It is richly ironic to see artists who are twenty miles to the left of Joseph Stalin on every other issue, and many of whom demanded that pharmaceutical companies be compelled to surrender their patents on new drugs, suddenly become property rights zealots when it comes to enforcing their copyrights. Are you listening, Mr. Springsteen?

|6.26.09 @ 8:25AM|#

Intellectual Property is not property. That it took 35 posts on "libertarian" blog to note this fact is almost incomprehensible.

Rich|6.26.09 @ 8:39AM|#

FDS, Zappa nailed it:

"Atoms are really vibrations, you know, ... but see, the pigs don't know that, the ponies don't know that ..."

Granite26|6.26.09 @ 9:56AM|#

How did Pride and Prejudice and Zombies fail to net a mention in this article? FAIL

|6.26.09 @ 10:02AM|#

I don't understand why an injunction is the proper remedy here. Why not damages, as in ordering the payment of a licensing fee (in the unlikely event that the new book is found to actually infringe on the copyright of the old one)?

|6.26.09 @ 10:23AM|#

"But a law that simply recognizes the property rights inherent in someone ELSE's expression is no law 'restricting freedom of speech, or of the press.'"

The key to property rights is the ability to exclude. While I disdain comparisons of IP to traditional property rights, I think it is useful here:

I have a fence and a no trespassing sign. I can exclude you from walking on my property. But I cannot exclude you from looking at my property from the road or from taking a picture of the property, or from publicly commenting on my use of the property. Copyright ceased to be a limited protection, a "no trespassing sign", a long time ago. Nowadays the content people don't want you to look at the property, think of the property, mention the property, or acknowledge its very existence.

|6.26.09 @ 10:41AM|#

How did Pride and Prejudice and Zombies fail to net a mention in this article?

Yeah I was wondering the same thing.

Of course, checking out some of Cathy's Xena fan fiction made me forget all my objections.

|6.26.09 @ 10:59AM|#

The length of copyright protections are total bs. Patents expire after 20 years and then - BAM - generic drugs, etc. The terms shoudl be identical - lenghten patent protection of shorten copyright. It seems to me the conclusion is this - patents on useful stuff need to be short so we can actually get good cheap stuff as quickly as possible. OTOH copyright material just isn't really needed or essential for anything, therefore wee can give it a long term because no one is going to die becasue a work of fitionisn't available in generic form - unlike say an AIDS drugs. So authors get exclusive lifetime protection and scientists/inventors get crap. And I'll wager most authors never had to take calculus, physics or chemistry - but the scientists all had to take western civ! Copyright law is BS!!!

Ron Hardin|6.26.09 @ 11:23AM|#

There's an economic argument that copyright protection is misguided in the first place, producing only rent seeking and no additional creativity.

Econtalk.org Boldrin on Intellectual Property podcast.

|6.26.09 @ 12:06PM|#

Intellectual property is BS. If I hear a speach/song/story and it makes an impression in my brain as a memory then I own that impression. I own that memory...the memory is my physical body...it is me. I own myself, the state does not own me.

People who claim to own other people's brains or think it is good for the state to own people are collectivists.

Anyone who makes claims to ownership of me deserves to eat a shit sandwich.

|6.26.09 @ 12:08PM|#

Intellectual property rights do not encourage innovation and good ideas.

Instead they encourage the hiring of lawyers and making friends with judges and politician scumbags.....this is the complete and total opposite of encouraging good ideas and innovation.

|6.26.09 @ 12:22PM|#

If there really is a right to intellectual property, than anyone who is, for example, writing a parody of your work, and is trying to make money from it, should have to pay you something.

The problem is that copyrights are now going on forever, in part because of Disney. Walt Disney is long dead and can no longer profit from Mickey Mouse, but the Disney Corporation is immortal, and thinks they should get to own Mickey Mouse forever, even though the corporation did not create him. Same goes for the heirs of deceased authors.

Patents don't go forever and neither should copyright. I would be willing to trade stricter copyright violation laws for much shorter copyrights, say ten or twenty years. If a work has lasting value, it will still be worth parodying ten or twenty years later.

|6.26.09 @ 12:28PM|#

I would be willing totrade the elimination of all intellectual property right laws for the benefit of firing all government workers who are involved in the enforcment of IP law and the enhanced ability of humanity to innovate and recombine ideas into better concepts. The high IQ lawyers currently living off of dead men's ideas could find work that will actually do something productive for society.

|6.26.09 @ 12:32PM|#

And now Monsanto can create a seed and claim IP rights to it...(no problem yet). They intentionally let the seed and it's genes mix through the wind with the general population then when the gene is spread far and wide they bring in the government guns to prosecute all the people who are now growing "monsanto crops". Reason loves Monsanto and so they will defend IP law.

Aaron Kinney|6.26.09 @ 1:15PM|#

You would personally support a 50 year copyright term. So why are you writing at Reason? Shouldn't you be writing at DailyKos or The Socialist Worker?

|6.26.09 @ 2:17PM|#

She is a typical neo-connish libertarian.

1)Pro IP laws

2) Pro-using trade and embargoes as a foreign policy tool on every nation that has a leader not liked by republicans. The idea that this hurts the people of said country more than the leader and that this act of anti-trade is fundamentally opposed to the ideaology of freedom is lost on them.

2-1) the use of the term "isolationism" amongst these folks means something entirely different than logic would imply. To them it is "isolationist" to demand free trade with all countries regardless of political whims. To them it is not isolationist to militarily occupy dozens of countries with troops and undergo covert operations using violence and puppet politicians. To them it is isolationist to want low taxes which could benefit the US economically. They say that we show our care for other countries freedoms by destroying our own freedoms. In fact they don't even advocate spreading "freedom", they advocate "spreading democracy"...sometimes.

3)pro bombing Iraq/Iran/Af/Pak ...pro bombing ANY mideast country, because it is by defintion filled with "Al Quada in _____". Of course this excludes Saudi Arabia and Israel because well just because...what's wrong with you are a you a conspiracy theorist?


4) Pro using the cold war as a wildcard to get out of discussing any stupid foreign policy decision ever made by the USA or any act of American sponsored terrorism or false flag event or funding the Taliban or Mujahdeen or Sadam Hussein.

5) pro putting nukes on the border of Russia.

6) pro federal reserve. However, they won't actually defend the idea of a centrally planned monetary system(communism). They will only attack those who are against the fed as being anti-semites or nuts.



Reason always has one or two guys who fits this description...Michael Young seems to be gone...so they use Moynihan more now and Cathy Young comes by to tell us how Russia invaded Georgia and torture is good for us and free speach cages are what was meant to be protected by the 1st Amendment.

Besides that there is still a lot of good stuff at Reason. Most all of them really are against the drug war or at least they keep their mouths shut about it....but don't ever say that the CIA has ever raised funds by trafficking drugs....they are trafficking deniers. They think the drug war is just here because southern christians are extremely powerful and extremely stupid.

|6.26.09 @ 4:29PM|#

Sounds like Cathy Young is arguing for copyright reforms that are the artistic equivalent of eminent domain.

|6.26.09 @ 4:44PM|#

Sounds like Cathy Young is arguing for copyright reforms that are the artistic equivalent of eminent domain.

The Constitution places "limited times" on copyrights, making it just exactly like eminent domain without any compensation. No difference. Exactly alike.

|6.27.09 @ 9:31AM|#

@Lamar

Copyright is different from eminent domain. Copyright is a government-granted monopoly, that for practical purposes is infinite (they keep extending it every time something of Disney's is about to fall into the public domain). It creates an artificial scarcity in the realm of "creative works". Disney made their money reinventing works that were in the public domain, but now refuses to return the favor.

Eminent domain involves taking someone's property, which is naturally scarce, through coercion.

These things are not alike in any way.

Justen Robertson|6.28.09 @ 4:00AM|#

Simple answer? Copyright law is stupid.

Harry Hillman Chartrand|6.28.09 @ 2:54PM|#

Copyright is the fruit of the poisonous tree. While the American Revolution overthrew an ancient regime of subordination by birth it nonetheless adopted British Common Law including business law and most specifically copyright. Thus the first US Copyright Act of 1790 bears a title almost identical to the first British Statute of Queen Anne of 1710. In both 'exclusive rights of authors and inventors' referenced in Article 8 of the American Constitution were encumbered by rights of the Proprietor. And with the exception of the term 'learning' neither acknowledged any rights of the public. In fact the American statute quickly became the foundation for industrial warfare with England. Hence works by British and other 'foreign' authors were mercilessly pirated with no royalties paid to creators until 1899. Thus the US and the Austrian-Hungarian Empire were the two great pirate nations of the 19th century.

The French Revolution, on the other hand, not only overthrew the ancient regime but also the common law. With respect to copyright the philosopher Kant's idea that a work is an extension of a human's personality made a creator's moral rights in literary and artistic works a 'human right' that is inherent, inalienable, imprescriptable and unrenounceable. Hence the French term is author's rights not copyright. Furthermore, the economic rights to a work were limited in time in order to grow the 'public domain', a term that did not enter the Anglosphere legal lexicon until the Berne Convention of 1886.
In fact under American law a creator has virtually no moral rights and an employee does not even enjoy the right of paternity (unlike patents). The difference became most evident with respect to new media such as motion pictures and photographs. Under Anglosphere copyright all rights to a motion picture and photograph reside with the owner of the negative not the director/creator. In France they belong to the creator and hence a 'colorization' controversy can never occur.

The original Statute of Queen Anne was primarily intended to break the perpetual copyright enjoyed by the Stationers' Company of London. It is therefore ironic that copyright in the digital age now approaches the perpetual copyright of the Stationers' Company. In effect, the American Revolution with respect to intellectual property is unfinished and a new revolution is needed to overthrow an ancient regime subordinating both the creator and the public to Proprietors, a.k.a., corporations.

For further information, please see: Preface: Cultural & Intellectual Property - Cult of the Genius - http://www.compilerpress.atfreeweb.com/CMCP%201874-2008%20Preface.pdf

|6.28.09 @ 11:07PM|#

it's all part of a lattice of coincidence.

i'm gonna go get me some shrimp!