Posted by Jim Lindgren:
A Sequel or a Commentary on "Catcher in the Rye."
http://volokh.com/archives/archive_2009_06_21-2009_06_27.shtml#1245617471
The New York Times has an [1]interesting story on a copyright case
involving a possible sequel to [2]The Catcher in the Rye :
The judge, Deborah A. Batts of United States District Court in
Manhattan, granted a 10-day temporary restraining order forbidding
publication in the United States of a new book by a Swedish author
that contains a 76-year-old version of Holden Caulfield while she
considers arguments in a copyright-infringement case filed by Mr.
Salinger.
His lawyers contend that the new work is too derivative and that
the characters in �Catcher� are protected by copyright. . . .
�I�ll issue a written decision as quickly as I can,� she said,
adding that until then, her order would prevent publication here of
the new book, �60 Years Later: Coming Through the Rye,� by J. D.
California, a pseudonym for the Swedish writer, Fredrik Colting. .
. .
Mr. Colting�s book, which was published in England, describes
itself as �An Unauthorized Fictional Examination of the
Relationship Between J. D. Salinger and his Most Famous Character.�
His American lawyer, Edward Rosenthal, called the book a critique
that describes an aged Holden Caulfield � in the persona of a
character called Mr. C � as �a lonely old man,� and depicts Mr.
Salinger as a prisoner of his own achievements who is haunted by
his famous creation.
Characters in Mr. Colting�s book and Mr. Salinger�s inhabit
parallel worlds, visiting Grand Central Terminal, the Museum of
Natural History and the carousel in Central Park. Both Holden
Caulfield and Mr. C despise the word �grand� and both like the
phrase �to tell you the truth.�
Supporting characters from �The Catcher in the Rye� also surface in
Mr. Colting�s book. There are references to Mr. Spencer, a teacher
from Pencey Prep, and to a student, Stradlater, who in the new book
confesses to having stolen a pair of gloves that Holden Caulfield
wondered about in Mr. Salinger�s book.
Holden Caulfield�s younger sister, Phoebe, shows up in the book by
Mr. Colting too, having aged into a drug user suffering from
dementia.
Mr. Rosenthal argued that his client�s book, which includes several
new characters, qualified as a form of literary criticism because
it provoked questions about the nature of Mr. Salinger�s book. �I
believe that this work significantly comments on �Catcher in the
Rye,� � he told the judge.
But Marcia Paul, a lawyer for Mr. Salinger, said the book has
assumed the appearance of a sequel.
While all this sounds bad for the author of the new work, there was
one line of argument offered by Salinger�s lawyers that seems off
base, even though it might or might not be supported by case law:
Mr. Salinger�s lawyers have said that Mr. Colting is trying to
exploit the popularity of �The Catcher in the Rye,� a classic
coming-of-age novel that has sold 35 million copies . . . .
�They described and sold this book,� she said, �in order to trade
on �Catcher in the Rye.� �
It is absolutely routine for one work to spawn imitators that �trade
on� or �exploit the popularity� of the more successful work. Very
successful works create their own subgenres.
And books, movies, plays, and TV shows are often referred to or
marketed as being attractive to those who liked an earlier work. I did
a quick Westlaw news search for the phrases �Star Wars meets� or
�meets Star Wars� and found 461 examples, such as �[3]'Star Wars'
meets [4]'The Ten Commandments' � or �[5]Monty-Python
-meets-�Star-Wars.�"
There were 252 examples of "[6]'Jaws' meets" or "meets Jaws."
There were 62 examples of "from the studio that brought you" and 21
examples of "from the producers who brought you."
Though most of these examples of trading on another work�s success
were made by third-party commentators, some were made by marketers of
the new works.
I understand why the law of copyright might want to restrict the
writing of actual sequels or prequels using the same characters. I
offer no argument on that issue, though I would want to give a broader
protection for commentary in novel form on earlier works than current
law probably affords for modern works (e.g., I think that the many
reinterpretations of Sherlock Holmes are a pleasant and useful
addition to modern literature).
My comments here are not really about existing copyright law, which is
not one of my areas of expertise. Rather, it is about where, in my
opinion, the law should draw the line. If in J.D. California�s novel
no characters had been repeated, I would see nothing wrong with the
rest of what is complained of. Building on other people�s
accomplishments and appealing to existing fans of copyrighted and
trademarked work is how knowledge, art, and commerce advance.
References
1. http://www.nytimes.com/2009/06/18/nyregion/18salinger.html?ref=books
2.
http://www.amazon.com/gp/product/0316769177?ie=UTF8&tag=prodreviandba-20&linkCode=as2&camp=1789&creative=9325&creativeASIN=0316769177
3.
http://www.amazon.com/gp/product/B001EN71DG?ie=UTF8&tag=prodreviandba-20&linkCode=as2&camp=1789&creative=9325&creativeASIN=B001EN71DG
4.
http://www.amazon.com/gp/product/B000CNESNA?ie=UTF8&tag=prodreviandba-20&linkCode=as2&camp=1789&creative=9325&creativeASIN=B000CNESNA
5.
http://www.amazon.com/gp/product/B0009XRZ92?ie=UTF8&tag=prodreviandba-20&linkCode=as2&camp=1789&creative=9325&creativeASIN=B0009XRZ92
6.
http://www.amazon.com/gp/product/B0008KLVG4?ie=UTF8&tag=prodreviandba-20&linkCode=as2&camp=1789&creative=9325&creativeASIN=B0008KLVG4
_______________________________________________
Volokh mailing list
[email protected]
http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
