JD Salinger Sues Author For Writing A Sequel To 'The Catcher In The Rye'
from the let's-look-at-copyright dept
Eric M writes in to let us know that JD Salinger is suing the author and publisher of a new book that claims to be the sequel to Salinger's famous The Catcher in the Rye. Salinger is claiming that the book infringes on his copyright -- which may be a big challenge. Now this is an area of copyright law where a lot of lawyers disagree, but in general an unauthorized sequel doesn't necessarily infringe copyright. Copyright covers the specific expression, not the idea -- and since a "fan" sequel isn't likely to decrease interest in the original (in fact the opposite is likely to be true), there's unlikely to be a finding of copyright infringement. Of course, the specific details may matter and cases have gone in all different directions on this. There is, for example, the famous lawsuit about the book The Wind Done Gone, which was a retelling of Gone With The Wind from a different perspective. A lower court issued an injunction to block the sale of a book, but eventually it was allowed. There are certainly other potential claims that Salinger could make -- but the article specifically says it's a copyright issue, which seems like a tough sell.
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Filed Under: catcher in the rye, copyright, creativity, jd salinger, sequels
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Huh?
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The Wind Done Gone Bad example is extremely misplaced, as the outcome of that case turned on the fact that the "sequel" was in fact a parody of the original.
Without knowing more about the sequel, it is more than likely going to be considered an infringement of the exclusive right to prepare derivative works.
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Mike --- Your analysis couldn't be more wrong in this case.
I said this was disputed, and there were strong arguments on both sides.
For example, this legal analysis explains why copyright doesn't apply:
http://www.btinternet.com/~akme/solomn05.html
Others have explained why it should.
I was explaining why it shouldn't, and noted (correctly) that this is disputed.
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You mentioned The Wind Done Gone Bad in your original post. Even that case found the sequel to constitute copyright infringement, albeit non-actionable infringement under the fair use doctrine.
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Perhaps you should read the comments here Mike and understant that your article is poorly written. Your conclusion should be nearly the opening statement. You don't really touch on it until the end. You leave the impression (because of the way your blog tends to lean) that you are calling out another horrible assault on "innovation".
Perhaps a re-write might be order?
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TS: "Salinger is claiming that the book infringes on his copyright -- which may be a big challenge."
Conclusion:
"There are certainly other potential claims that Salinger could make -- but the article specifically says it's a copyright issue, which seems like a tough sell."
The basic, singular idea of both, as well as the rest of the article, is the tenuous nature of Salinger's copyright claim. Your condemnation is unjust.
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He didn't say that at all, but he sure could have. This is clearly a case of copyright potentially stifling creative work - the exact opposite of its intent.
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Catcher in the Rye
It will be interesting to see how this turns out.
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IP/Copyright = Welfare
Heaven forbid that someone take your work and extend it - oh the horror. Heaven forbid that someone create interest in your original works and make you more money indirectly. Heaven forbid that someone give you the greatest compliment of all time by extending and honoring your prior work.
Freedom
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Re: IP/Copyright = Welfare
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Re: IP/Copyright = Welfare
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Re: IP/Copyright = Welfare
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Awful taste in literature aside, the cynic in me knows that the courts will find in Salinger's favor and the Streisand Effect will boost the other author's subsequent works while giving Salinger a black eye.
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"fan fiction", especially when sold commercially, is sort of like a DJ remix - the underlying material belongs to someone else. Without the orignal, the extension is meaningless.
Mike, this is another situation when you just don't see things right.
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Actually, you could not be more wrong here. Ideas can't be copyrighted. It is a specific expression of an idea that is covered by copyright. Fictional characters, places, etc, can be trademarked, but that is not the same as copyright. In some instances, infringement has been found when someone copies a plot, but it has to be an extreme, character-for-character, plot-point-for-plot-point copy to be found infringing. That's not what this work is; rather, it is a sequel.
Personally, I see absolutely nothing wrong with unofficial sequels. In the end, readers are going to migrate toward sequels from the original author, anyway. So, if Salinger thinks this guy botched the sequel, maybe he should write his own. Clearly, there is a market for a sequel. If he wants to, he can easily cash in on it with an official sequel and eclipse this guy's sales.
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As it always was, copyright remains an oppression of expression.
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OK, to be more specific, the original goal of copyrights in the United States was "To promote the Progress of Science and useful Arts" (from the US Constitution Article I, Section 8, Clause 8). Now of course the goal is to protect incumbent content creators from competition. Cynical? Me?
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Yep
But look at this case. What's the social benefit of preventing a sequel? Is Salinger going to retroactively un-write the original? Has he not made enough money yet, and he's concerned people will buy the sequel instead of the original?
It's idiotic on the face of it. But I'm afraid it's a fair accompli that copyright has become about ownership the broadest sense of the word rather than any kind of mutually beneficial social contract. Fix that, and rebalance society's interest in having new works against authors' interest in being able to make a living while creating works, and this stupid case become just a footnote.
As things stand, though, my guess is that Salinger will prevail and we'll see creative opportunities further limited.
God help us if/when whoever first penned "It was a dark and stormy night" decides to sue everyone who's used or riffed on it.
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"60 years later: Coming Through the Rye" and billed as being a sequel to Catcher in the Rye? Come on. This guy took a well known author, novel, and is trying to use them to sling his own crappy book.
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You offered absolutely no points to justify the lawsuit not being bogus. You just offered a biased opinion that the other guy should lose cause you don't like it.
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Fan fiction legal?
I thought derivative works are covered by copyright.
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Re: Fan fiction legal?
I'm not saying I agree with the outcome, I'm just saying its an entirely different scenario.
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Oh Noes!!11!
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So looking at it from a purely aesthetic perspective (and acknowledging I haven't read it) I find the work to be shit. Lazy. Disgusting.
Who among us in our adolescence hasn't read 'The Catcher in the Rye' and then headed to our journal and attempted to emulate 'The Catcher in the Rye'?
However, who among us didn't quite get it; never grew up; continued the narrative and produced a sequel? Apparently this 'author.'
As the poet says, he gets the gas face.
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just waiting for the right moment
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Re: just waiting for the right moment
But if we do that, we won't encourage Salinger to get off his ass and create new works.
Oh, wait... I see the problem here.
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Yeah,
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Hegemon:
Your statement of the law is incorrect. While it is true that ideas themselves are not copyrightable, a character can rise to the level of expression... and infringement can occur even when the defendant does not utilize actual language/plot lines from the plaintiff's original work. See, for example, MGM v. Honda (900 F. Supp. 1287), holding that the use of a James Bond like character in a car commercial constituted infringement. Unauthorized sequels have also been found to constitute infringement in several famous cases: most notably Anderson v. Stallone (11 USPQ2d 1161) and Microstar v. FormGen (154 F3d 1107).
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In any case, the post I responded to DID suggest far broader coverage by copyright than what actually exists, even today. Go back and read what I responded to.
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Hmm?
How is "Cather" not yesterdays Marilyn Manson or GTA3?
Oh, Jerome, now that you're back in the news, they're going to come for you...
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The owner's for-profit use of of his own virtual-public-mindspace property is HIS right. Not the right of others because he hasn't done so yet, or becuase they have a great idea on how to use it, or because there is a market for it, or some other such nonsense.
If the sequel writer wants to license the property he can work out a deal with the creator and in the case of hip-hop the market ensured that the average costs settled at an amount that is low enough that it rarely serves as a prohibitive barrier to innovation.. but it's outrageous to assume that anything you see or read is yours to use *for-profit* because you think you can or you just want to. If the artist so desires it, we *pay* them to make a remix of their songs. This is not just a free digital copy of catcher in the rye, (the whole "it's not theft due to infinite supply" theory) imho this is unauthorized pollution/dillution/enhancement of a resource.
Unlike a reproduced song, an intellectual property can in fact be damaged (or enhanced) by misuse. If the sequel writer wants to write fan-fiction and not profit from it, then that is one thing. But to decide as a writer that you are too lazy to create your own characters, and references and/or your own original back story when you want to produce a *for-profit* creative work, to me that demonstrates a clear LACK of innovation, and creativity, and contribution to the public body or pool of what I guess we should call virtual value.
Sometimes this site has the attitude that nobody should profit from anything they create beyond live performances. That's bullsh^% ok? The sequel writer is not being "stiffled" if he's not allowed to crib somebody else's homework; he is free to do it himself.
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Making up new phrases doesn't make you right. Also, it's not property. It's a *limited* monolpoly. Limited not only in tenure, but also in scope. Pretending it is property is foolish, and only leads to people trying to staple on actual property rights to something that never was and is *not* property.
Unlike a reproduced song, an intellectual property can in fact be damaged (or enhanced) by misuse. If the sequel writer wants to write fan-fiction and not profit from it, then that is one thing.
The act of charging (or not) does not determine if the story is good or bad. Therefore, stating that it is somehow better if the artist does not charge for his work is misleading, and only shows that you are the type of person who views copyrights as a "right to get paid". It is *not* a right to get paid, but the *limited* monopoly over one's works. While trademark laws seem to often trump this, I can't see how copyright does.
Also, you've gone and showed my eariler point, that using the word "property" where it does not belong only causes confusion: Your *limited* monopoly cannot be damaged. It can be taken away, or enforced.
But to decide as a writer that you are too lazy to create your own characters, and references and/or your own original back story when you want to produce a *for-profit* creative work, to me that demonstrates a clear LACK of innovation, and creativity, and contribution to the public body or pool of what I guess we should call virtual value.
You really think that works are created in a vacuum? That nothing inspires creation? You clearly have never created anything, then. How many times have musicians given interviews where they say that they were inspired by another artist? Just because something is *based* on something else does not mean it is not creative. If it wasn't creative, then anyone could do it. It would be commonplace-- we'd be tripping over all the CitR sequels there'd be so many.
As for contribution to the public *domain*: (That's the word you're looking for, btw) Since CitR is clearly *not* there, then Salinger also hasn't contributed to public, right?
Again, making up phrases like "virtual value" doesn't make you right. (or easier to understand)
Sometimes this site has the attitude that nobody should profit from anything they create beyond live performances. That's bullsh^% ok?
This site usually has the attitude that people should get paid for work they do, not work they did, and that using copyright to prevent the creation of new works, even remixes, is going against the purpose of the law, which is a gross misuse of the law, and needs to be safeguarded against to allow for more creative works to be created.
Case in point: There is no sequel to CitR, but clearly there is a perceived demand for one, and as Salinger hasn't bothered to create anything new (ironically, using the system designed to spur creation as welfare) then someone else has decided to fill that need, and is now being prevented from doing so. (Ironically, using the system designed to spur creation as a way to stifle it.)
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I didn't say "public domain" because I didn't really mean.. "public domain"- as you point out, we wouldn't be having this discussion if JDS had put CiTR in the public domain - so we are in agreement there.
I freely admit to not knowing exactly what to call a "shared perception of imaginary events/persons/places based on a common experience of a fictional work" in the context of legal protections. I didn't create the term in lieu of an argument to "make me right" I was struggling to name the phenomenon I described above - any help you can give me would be appreciated.
And I didn't say creative works were created in a vacuum. The work of another that "inspires creation" is a wonderful thing. We are in violent agreement on that. "Inspired by" implies that the new work is significantly different from the original. What we're talking about in this article is the work of another that is plagerized wholesale (in that the new creator presumes his audience possesses that phenomenon I mentioned above - whatever you want to call it) and added to it, to make a sequel - even a great sequel - without the permission of the original creator *for profit*.
I didn't relate charging for a product to the quality of that product either.
I think the *for profit* aspect makes a big difference since I don't believe in legislating against or prohibiting peoples' free speech and creativity that allows them to draw on ALL of their experiences real or fictional. Fan fiction is awesome.
What we're talking about is making money off of someone else's work. I just don't think that's cool. Again I understand the business model around sampling and I think that works, but to act (in the market place) like something is in the "public domain" when it isn't intended to be by it's creator, is imho artistically dishonest, and should be commercially illegal.
I guess we fundamentally disagree in that I think someone should be able to get paid for work they did, as well as for work they are doing. I think creative works are an investment by the creator, and that investment creates capital of a sort (again I ask your help in naming it if the term "intellectual property" offends you) that the creator should be allowed to sell many, many times with the legal protection of a limited monopoly if the market desires that capital-of-a-sort. In fact, (as I go out on a techdirt limb here) I think that if the artist continues to produce, over time, I think the creator has a right to profit from all of the elements in that "body of work" he or she has invested in.
Do I think that the creator's limited monopoly should be indefinite? no. Should it be so sweeping that it covers things that are similar? Probably not, but that is for the courts to decide depending on how close the new work is to the orignial. Do I think the owner of the original work should be able to invoke the law to prevent future works of that in that same type, style, subject, etc. etc.? Obviously I don't think so. The creation of a CiTR-type novel or a CiTR-type sequel is fine. (Apparently there's a market for it) But a direct leveraging or referencing of someone elses intellectual property (Sorry.. I really need that new descriptor term from you), to be sold in the market place without even so much as permission or a sampling-type agreement from the actual creator/owner of that "fictional experience guide" (maybe?) strikes me as unfair.
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A limited monolpoly over the power to determine who may or may not copy your creation is quite often referred to as a "copyright". I'd suggest calling it that.
"Inspired by" implies that the new work is significantly different from the original.
Citation please, because I've always thought "inspired by" meant that it meant "thoughts, feelings or ideas were triggered by" in which case, while reading CitR, this guy came up with an idea for a sequel.
I didn't relate charging for a product to the quality of that product either.
You *did* say that works based on another author's works could possibly harm the reputation of the original work, and then you say it's all good if it's done for no profit. I just was pointing out that if it's crappy and it's free doesn't prevent this. So which is the concern? That the original author's works may be tarnished, or that someone has the audacity to make money from someone else's fantasy world?
I guess we fundamentally disagree in that I think someone should be able to get paid for work they did, as well as for work they are doing.
Salinger is doing *zero* work. This other guy did all the work. Making up characters is relatively easy compared to setting them up in a story that is desirable to readers. Regardless, the question I want to know is how does this sequel *hurt* Salinger? He isn't writing anything, and I'd bet a good deal of money that he just wants a cut from this book, not to stop it. So he wants more money for doing zero extra work. Explain this to me.
again I ask your help in naming it if the term "intellectual property" offends you
It doesn't offend me, it is a confusing term. Try using "copyrights" or "patents" or "trademarks" instead of lumping things with different rules into one category. It's NOT property. The very closest is a lease, but even that will lead to people believing it is actually a lease. It is a government granted monopoly to encourage creative people to create. Salinger is not creating, he is using the copyright system as a welfare system, which it is not. If he was using it properly, he'd still be writing, because I assume he likes to make money.
Should it be so sweeping that it covers things that are similar? Probably not, but that is for the courts to decide depending on how close the new work is to the orignial.
Why is everything "for the courts to decide"? We're all mostly adults here.. do we really need the government to tell us what we can and can't, should and shouldn't do? It's absolutely clear that Salinger believes he is entitled for money for work he did in the past, while doing no extra work. That's welfare, when you expect money for no work. The copyright system is not welfare. If it's not pushing writers to pump out book after book (or enabling them to write one good book and leech off it for the rest of their life, their children's life, and into their grandchildren's life!), then it is broken. End of story.
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Well if JD Salinger wants a piece of my mind, he is welcome to it and so are you!! You illegitimate children of feudalistic tyranny!!
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Granted, it's rare that someone else other than the original author writes a sequel to a book. But does Salinger actually believe he has a point here?
I believe most fiction is based on something else.
Perhaps this author shouldn't have said 'sequel to' but rather 'based upon', but it would amount to the same thing, and is just semantics.
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Legality of Fan Fiction
This whole argument does distort the story some, however, since Rowling's argument against the Lexicon (which was to be a book format of the website) was that it offered far too little original content by the "author". She even went as far as to endorse another book, The Sorceror's Companion, in court. If you look at that book, you'll notice that there is quite a bit of original content.
It really does depend on the holder of the copyright as to what fans can get away with.
Courtney
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Sequel.
Pretty damn intentional on Salinger's part. Holden's story ends when it ends. It is isolated within the pages. Furthering the story doesn't make any fucking sense. The writer of the "sequel" is obviously a dimshit hack who's going to slobber all over Salinger's creation.
Let a fool be a fool.
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and since a "fan" sequel isn't likely to decrease interest in the original (in fact the opposite is likely to be true),
There's many tons of truth in that statement.
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The Zombie Catcher in the Rye
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met a man in a gyped land
starting for my major
"come to me" he said to me; my dark horse and i,
we followed
him
into battle
inches away, no sooner than day
parted night's blanket, his narcissism stable,
our man lead the way through fog as thick as cable.
tell a
vision.
television's the past, mrs. beasley's dolled down,
soaps become lyes, tears there have dried.
men again standing
men again standing forward and aft
men again standing for what they're able.
"don't touch their wounds" our man repeats
"always keep beats, ahead for their heads. Make
keeps for your own
hearts, pyramid their dead
to the far side
far side is victories" he said
all
probably mislabeled mislabled
we took them down, indeedly
initially
entirely
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An Overlooked Point
These are very fact specific inquiries, so without having a lot of details from the book it is hard to say how things will come out. But the court will look very closely at (among other things) what was copied and what effect it will have.
Nevertheless, I have read the complaint, and it seems that "J.D. California's" book copied more than was necessary to make a sequel. The book shows very little imagination; the author essentially makes Holden C. old and takes him through most of the same scenarios in the book, which is a simplistic process.
I support the idea of protecting fan fiction and parodies, but I think there has to be some point at which there is just too little creativity and too much copying.
I have posted a legal argument in favor of Salinger on my site at http://tinyurl.com/qwrg8v.
Admittedly, it's based mostly on the allegations of the complaint, but it is a starting point for looking at the issue.
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fair use?
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Understanding
In this particular case, the author is using the Holden Caulfield character, which is hard to get around saying it's okay to use. That's an original idea by Salinger, and he has full copyright to it.
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