Robert Sheridan
Mon, 08 Feb 2010 10:45:41 -0800
Fair-use, some might call it.Herbert Bloom, the estimable literary analyst, critic, and long-time Yale Humanities professor, suggested in "The Western Canon," (Harcourt Brace, 1994) pp. 4-6, that the author of the Old Testament books Genesis, Exodus and Numbers, was a Hittite woman who had first been the wife of a soldier named Uriah and later of a king named David (who had sent Uriah off to his virtually certain death in battle so he could marry his wife) who lived in the palace, or temple, of David and their son, later called King Solomon, the famous judge.
How else would the author, referred to by biblical scholars as the "J" (for use of the name Jwvh, or Ywvh) author, have known so much of Criminal and Family Law Procedure as to be able to suggest the separation of witnesses to detect inconsistencies, thus revealing collusion, and the truth, and the threat to cut the by now famous Baby in half, to inspire the real mother to self-sacrificingly reveal herself, and thus the truth?
Her name? Bathsheba. Living in the palace provides opportunity and time for devotion to developing stories, character, and for writing. Other scholars, for similar reasons thus suggest that the Iliad was not necessarily written by a blind male poet-singer called Homer but by a woman living in palatial circumstances.
Bloom thus suggests that people worship literary characters...and who else stops to think of this possibility and its implications?
The idea of Holden Caulfield, the youthful protagonist of "A Catcher in the Rye," was protected by his creator, J.D. Salinger, who recently passed away.
Other writers have attempted to use Salinger's boy-character and convert him to a grown-up man in the exercise of their creative imagination.
Can you do that in America? If inspired, can one write a book about the fictional adulthood of the boys named Tom Sawyer or Huckleberry Finn? Or are they still in copyright? Can Nikos Kazantzakis write about the unknown youth of a grownup, later deified, called Jesus? See "The Last Temptation of Christ." There was some controversy over this book and the resulting film, as I recall, but they weren't banned, so far as I know, at least not in America. The New Testament character was not copyrighted by Matthew, Mark, Luke, and John, I suppose is the answer to the question whether it was modifiable by subsequent artists.
The ancient Hebrews didn't have copyright, I don't suppose, nor the First Amendment, to protect their thought and expression.
But America, we understand, does.Yet an American court has ruled that it is improper to appropriate the character of Holden Caulfield, which belongs to Salinger, to the creative use (and profit) of another writer and the public at large who might be entertained or thought-provoked into wondering what kind of person H.C. might have grown up to be.
If one can appropriate God and change His essential aspects, then why not Holden Caulfield?
In America.Perhaps because the copyright has not run out, but it is extendible for quite long periods, as observed a few years ago in the so-called Walt Disney case, by a tractable Congress and compliant Court.
Here's the opinion item which prompts the above rumination, thank you. rs SFGate J.D. Salinger's complaint Roger Rapoport Monday, February 8, 2010J.D. Salinger may be gone, but his ability to persuade a New York court to ban Swedish author Fredrik Colting's novel "60 Years Later" makes his estate the center of one of the biggest intellectual property battles in the land.
Last year, Salinger and his literary trust persuaded New York Federal District Judge Deborah Batts to enjoin publication of Colting's homage, which profiles the dotage of both author Salinger and Holden Caulfield, the protagonist in Salinger's "The Catcher in the Rye." The New York Times Co., the Tribune Co., Gannett, the American Library Association and attorneys with the Stanford, UC Berkeley and Georgetown law schools have all filed amicus curiae briefs supporting Colting's appeal.
Batts' decision to ban the novel has enormous impact on the free speech rights of writers, critics and other creative artists. If the decision is upheld, authors, professors and anyone with an interest in the written word could be victim of this decision to uphold Salinger's belief that he alone controlled his characters' lives and their thinking.
The irony here is worthy of a great novelist. Why would Salinger, whose own work has appeared on many banned-book lists over the years, have wanted to silence a new author like Colting - particularly after "60 Years Later" already was published in the United Kingdom? His suit is in line with the failed attempts of the literary estates like those of James Joyce, J.R.R. Tolkien and others to prevent the publication of reference works and literary criticism.
Traditionally the fair-use doctrine has allowed creative artists to use portions of a copyrighted work without permission for such purposes as criticism, comment, news reporting, teaching, scholarship or research.
But in the "60 Years Later" case, Batts bought Salinger's argument that because this depiction of Holden Caufield as a senior citizen infringed on his "Catcher in the Rye" copyright. In their amicus brief supporting Colting's appeal, the media companies argue: "The only harm appears to be to the pride of a reclusive author." The decision to ban Colting's book "defies common sense, and is not - and cannot be - the law."
Many examples of books drawing elements from such classic works as "Uncle Tom's Cabin," "War of the Worlds" and "Gone With the Wind" populate libraries. Salinger's argument - that his iconic character must be protected from copyright infringement - raises a much larger question for scholars drawing on great works for inspiration. Whether it's a novel like Colting's or a parody of Roy Orbison's "Oh, Pretty Woman," fair use remains the heart and soul of the creative process.
When Batts suggested from the bench that there was no need for readers to enjoy a new way of looking at Holden Caulfield because readers could simply read it "twice, or maybe five years later," she was giving Salinger what an amicus brief defending Colting calls "a monopoly on reassessments of Holden."
No such monopoly exists anywhere in copyright law. As Kevin Smith, scholarly communications officer at Duke University, puts it: "Judge Batts' logic would deprive each new author of those giants upon whose shoulders, Isaac Newton famously reminded us, we must all stand if we wish to see clearly."
Roger Rapoport is president of the Right to Write Fund, which defends the First Amendment rights of creative artists. To learn more, go to www.righttowrite.org <http://www.righttowrite.org>.
http://sfgate.com/cgi-bin/article.cgi?f=/c/a/2010/02/08/EDJF1BT74Q.DTL This article appeared on page *A - 14* of the San Francisco Chronicle© 2010 Hearst Communications Inc. <http://www.sfgate.com/chronicle/info/copyright/>
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