Intellectual Property vs. Creative Freedom

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

(http://reason.com/news/show/134379.html)

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.