US Banning Books: Unauthorized Catcher In The Rye Sequel Permanently Banned
from the burn-'em dept
We were among those who were absolutely horrified when a US district court banned the US publication of a book called Coming Through the Rye by Fredrik Colting (using the pseudonym JD California), which was an attempt (a poor one, by many reviewers' accounts) to write a sequel to JD Salinger's iconic Catcher in the Rye. In the US, which is supposed to believe in free speech and be against things like banning books, it's somewhat scary that a judge would okay the banning of a book. The ruling appeared to disagree with previous rulings, and a bunch of powerful forces concerned about the free speech implications of banning books had lined up to support an appeal.However, THResq reports that a permanent injunction has been issued, as the author and publisher of the book have settled the case and agreed not to pursue it any further. This is really unfortunate, because now the original book banning ruling stays valid and on the books for others to point to. Yet another example of copyright being misinterpreted, and censorship resulting. Copyright law is quite clear that there's supposed to be a separation between "idea" and "expression." Only the expression is protectable. Colting did not copy the expression -- he used the idea to create a brand new expression, and even if it sucked, it should not be banned. It's too bad that this is as far as this case will go.
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Filed Under: banned books, books, catcher in the rye. jd salinger, fredrik colting
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Though it apparently sucked, I'd read it. Streisand Effect + Moral Indignation = Curiosity.
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It's a hell of a thing to ban a book that's based off a book that's based off a poem.
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Though, I've noticed some refinement in its operation lately...
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They're actually everywhere. I've talked to a couple of authors about it. Turns out, because the file sizes are usually pretty small, they're usually set up in some sort of collection. For instance, you may have trouble finding "Jurassic Park" by Michael Crichton, but there are "Crichton Collection" torrents, or something similar....
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Those and a certain torrent search engine capable of searching the filenames inside torrents work very well.
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downplayed
This isn't 'too bad'... it's fsking scary!
As you mention: "This is really unfortunate, because now the original book banning ruling stays valid and on the books for others to point to." This is a dangerous precedent to set. Now anyone can simply make the case that a new expression is too much like their own and point here to get it banned.
Welcome to government-approved censorship ladies and gents. Last one out, please get the lights.
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Re: downplayed
The article here does what many attempt to do: muddy the waters by attempting to redefine things.
there's supposed to be a separation between "idea" and "expression."
There is a difference, but at some point, the ideas and the expression overlap. That overlap is critical in figuring out if the express is new or not. Clearly, this book would not exist in any way shape or form without Catcher in the Rye. It would not exist without the characters.
It isn't a parody, it is a serious attempt to extend a classic story, required reading in many schools (including mine). It attempts to piggy back on the classic and extract profit from it.
Put another way, if the book did not have a Holden Caulfield, and did not use the previous book as a basis for it's story, perhaps it would be original. In this case, without the significant character and the setup of the original book, the new work was meaningless.
The courts ruled the only way the courts could rule in this case: The new expression was entirely derivative of the original, and as such, violates the copyright of the original.
Regardless of the charged terms like "banning books" that TD choses to use, this is just a plain case of someone trying to greedily profit from the works of others, without permission. No hyperbole required.
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The concept of derivative works refers to works derived from the actual text (the expression), not derived from the idea.
No portions of the original text were used in this work in any way. Even the name "Holden Caulfield" is not used - the character is referred to as Mr. H.
The new work might be "meaningless" (or at least have far less meaning) without the original work, but that does not make it a derivative, because its actual written contents (the expression) are in no way derived from the actual written contents (the expression) of the original - they are simply informed by the concepts (the idea) of the original.
A book review is essentially "meaningless" without the original book, but it isn't a derivative work, is it?
And yes, "banning books" is indeed a charged term, but it's also an accurate one. Regardless of what you might feel about the legitimacy of the decision or the reasons behind it, this book has been banned. There is an official legal injunction saying this book can never be published in the United States. It's a banned book, plain and simple.
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The author perhaps could take the time to have his own original thoughts, create his own original universe and characters, and actually be creative. Now that would be impressive (and legal).
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His work may (in fact, almost certainly did) mix derivative expression with original expression.
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I also find it interesting that you seem to think that there's a correlation between writing a sequel that is your own story and knockoff (counterfeit) Rolexes and the Beatles copiers (they weren't trying for derived work, they were reworking what was there).
And what about every single book written in the D&D universe (and there are many? They are all 'derived' off of D&D's universe, which is (as admitted by the creators) derived from Tolkien's Lord of the Rings books.
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That comment makes it very clear that you don't understand the first thing about art, or its history, or its current state, or the process of creating it, or really anything else related to creativity.
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That would be impressive, especially since originality is a subjective term.
Is Star Wars an original universe? It's arguably derived from Buck Rogers and Saturday matinee serials and Seven Samurai and westerns and World War II and ancient mythology. How much remixing is required for originality?
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If you're going to accuse people of misunderstanding the idea/expression dichotomy, you should make sure you have a good graps yourself.
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Frankly, I'm glad I'm not on your side. You have values and priorities that I find bizarre at best, and contemptible at worst.
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LOL! This reminds me of a Simpsons episode. After Homer forgets to pick up Bart from soccer practice and leaves him standin the rain: "We can argue about who forgot to pick up who from soccer practice til the cows come home!"
"Frankly, I'm glad I'm not on your side. You have values and priorities that I find bizarre at best, and contemptible at worst."
I'm not sure what "side" you think I'm on. I'm just pointing out the flaws in your argument/post.
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Yeah, this is totally as clear cut as the issue in that episode, with zero room for debate or interpretation. Very apt analogy. Excellent work.
I'm not sure what "side" you think I'm on. I'm just pointing out the flaws in your argument/post.
You are on the side that thinks the decision to ban this book makes sense. I'm on the other one.
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"You are on the side that thinks the decision to ban this book makes sense."
Interesting speculation, but I certainly haven't expressed that view.
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In this case, I agree with you that there is something of a spectrum (good choice of word) that can be debated. That's why it was a dumb analogy that seems to suggest YOU are the one who believes idea/expression is a black-and-white affair.
Nonetheless the baseline concept of the dichotomy starts with "fixed expression", and that's NOT an abstract concept. The beginning assumption is that only the literal text is the expression. Yes, arguments can be made to extend protection beyond that, and I'm not saying you need to copy text verbatim to infringe on a copyright - but you also need to do something more than simply explore similar concepts with similar characters.
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"It is of course essential to any protection of literary property, whether at common-law or under the statute, that the right cannot be limited literally to the text, else a plagiarist would escape by immaterial variations."
Nichols v. Universal Picture Co., 45 F.2d 119 (2d Cir. 1930), cert. denied, 282 U.S. 902 (1931).
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My point is that it is about the fixed expression of the work and the direct use of elements. If the work were significantly structurally similar, such as a trivial paraphrasing, that would still be infringing on the fixed expression, yes.
Note what the Judge said there - "else a plagiarist would escape by immaterial variations". We're not talking about immaterial variations here. I don't see how you can claim that an entirely new story that uses ideas conveyed in a previous story is infringing on the fixed expression of the original.
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It's a bit ironic that this case determined that the defendants were not infringing on copyright.
He does have an awesome name, though.
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That's why your statement "The concept of derivative works refers to works derived from the actual text (the expression)" is dead wrong.
"The beginning assumption is that only the literal text is the expression."
This is a false assumption, and only one made (whether beginning, middle, or end) by people who do not understand U.S. copyright law.
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I'm not defending it in any way, but generally characters are considered copyrightable, but they have to be specific and the infringing character has to be CLEARLY infringing....
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But that's just it: in fiction terms, is the old man version of a child really infringing? Is it even truly the same character? I think you could make strong literary and legal arguments that it is, in fact, an entirely new character.
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It's certainly supposed to be. Otherwise, how is the idea/expression dichotomy even possible?
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I don't think any opinion in the history of U.S. Copyright law has ever expressed that view.
The idea/expression dichotomy is a spectrum with nonspecific, abstract idea on one end, and specific expression on the other.
It is not easy to discern one from the other toward the middle of that spectrum.
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It's not nearly as clear-cut as you present it. In fact, two copyright cases on this very issue seem to contradict each other. In Suntrust Bank v. Houghton Mifflin Company (the "Wind Done Gone" case), it was ruled that the clear use of others' characters was not infringing. On the other hand, in Anderson v. Stallone (the "unauthorized Rocky IV" case), it was ruled that use of others' characters was infringing (and, more disturbingly, that the original expression in the derivative work could not be copyrighted).
Obviously, I think this case is closer to the "Wind Done Gone" case. In order to see why, consider this quote from that case:
(Incidentally, that entire ruling is worth reading - it is a very clear and concise presentation of copyright law.)
That's not remotely true in this case. "Coming Through The Rye" (obliquely) references Salinger's characters, but not a single other "idea or concept" has been copied. The plot, situation, and character development are all completely different. By banning this book, which is exactly what the court did by issuing a permanent injunction, the public is robbed of all of the original expression.
It runs exactly 100% counter to how copyright and free expression are supposed to be reconciled:
- Feist v. Rural
Building upon the works of others is one of the reasons fair use exists. In my opinion, Judge Deborah Batts made a huge mistake here. This is absolutely "censorship through copyright."
Not that anyone thinks the public lost very much. Here's another review by someone who actually read it, and who gives it a solid thumbs down. But even she says the book shouldn't have been banned.
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The only thing clear cut is that expression is *not* limited to the actual text.
Unless I'm mistaken, the Wind Done Gone case did not rest on an "idea/expression" ruling, but on a fair use ruling, right? (I haven't read it in a while).
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On re-reading, I may have slightly misrepresented what the case actually ruled. The "Wind Done Gone" case did not actually find that the book itself did not infringe on the copyright to "Gone with the Wind."
It said that, even if it did infringe, a blanket injunction is unconstitutional. Even if it was infringing, and thus harmed the plaintiffs, "such harm can adequately be remedied through an award of monetary damages" - even though the plaintiffs sought an injunction, and not damages. Moreover, "it appears that a viable fair use defense is available."
In other words, an injunction is only constitutional if 1) monetary damages are not sufficient; and 2)if a "fair use" defense is not even possible.
Moreover, that is regarding an injunction after an adversarial hearing has already been held. Unlike these cases.
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(Emphasis mine.)
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(Emphasis mine.)
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The only thing clear cut is that expression is *not* limited to the actual text.
You are right about that. It's not limited to the actual text; for instance, novel descriptions in the text are protected (e.g. if you show a non-fictional biography to a Hollywood producer that invents a fictional character, and that producer makes a film with that character without paying you, it's infringement).
But even considering that, this case is hardly clear-cut. There is a pretty strong case for fair use; and even if not, it seems like the author could just change the names, and it would be 100% legal.
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Speaking of hyperbole . . . .
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A non-practicing "publisher" could buy up the rights to thousands and thousands of pulpy novels that never went anywhere, including cleaning out the stock of defunct publishing houses, then compile a huge database of all the character names, fictional cities and critical plot points. Then they could run the text of every new book that comes out against their database and bust out the lawyers for any matches and offer licenses to the publisher/author.
Of course then practicing publishers would have to keep their own stable of stuff, perhaps forcing all their authors to choose all character names from an approved list or spending oodles of cash to re-write books in a way that doesn't infringe.
(Sadly, thanks to this injunction, none of the above counts as satire anymore)
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This isn't "general plot concepts" or "fictional cities", this is a specific and very significant character from literature, a story, a situation, and a setup. It isn't some vague "sort of kind of like" thing, is it?
No satire here either. The only satire is TD trying to call it a "book banning", which it is just a plain old violation of the original author's rights (assigned as they are to whoever has them now).
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Then again, the current state of patents is a very long way away from their original intent, so I don't think it's really all that crazy.
And to reiterate what I just posted above, yes it is a banned book. You can defend that decision, and say that it was for the right reasons, but at the end of the day, the book has been banned. The United States can no longer claim it doesn't ban books without adding the caveat "except for copyright reasons." Mighty similar to how other far less free regimes in the world can say they don't ban books "except for reasons of national security". Rest assured, just like the Wikileaks affair, this will make it a lot harder for the U.S. to take an anti-censorship position in their foreign policy.
Quit trying to claim that this book isn't banned. It is. IT IS BANNED. Defend that banishment if you want, but I don't see how you can possibly claim it hasn't been banned. Because it has.
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Um, when *could* the U.S. claim that? Nothing has changed.
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You are probably right that they never could *fully* claim that. But just because you're part-way down the slippery slope doesn't mean you should start gunning for the bottom.
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Now, whether or not this is an actual "ban" can be up for debate, but my point is that if you're going to call copyright enforcement a "book ban," then you've got to acknowledge that the U.S. has always done this, and most other countries do it as well, and it's nothing out of the ordinary.
That certainly undercuts the inflammatory "book ban" language, but it's logically consistent.
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Society looks back on books that were banned for obscenity with a fair amount of shame, and I believe that if more cases like this happen, one day it will look back on books banned for "infringement" in the same way.
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Well, you know, if you aim for the ground and miss, you could end up soaring the skies!
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It's like fucking book burning, is what it is, like the inquisition and Hitler used to do.
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"I READ A BANNED BOOK, THX INTERNET" 15$
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What's Next?
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Re: What's Next?
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He created the original character "Mr. H" - who is indeed based on the idea of Holden Caulfield, but only after that idea has been mulled over in a brand new creative mind, a mind which transported the idea decades into the future so it could reinterpret it and create its own entirely original creative expression.
It's not just "the continuing adventures of Holden Caulfield," it's a brand new story that examines the same concepts in an entirely new light.
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That said, simply calling a character an "idea" does not make it an "idea" as that term is used in copyright law.
The idea/expression continuum runs from vague, abstract idea to specific expression. In the middle, it is hard to define one from the other.
But assuming the character is supposed to actually exhibit the characteristics of Holden Caulfield, that would almost certainly constitute copying of enough specific attributes to count as copying protectable "expression."
Whether or not the literal text "Holden Caulfield" is every copies is not determinative.
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So tell me, if The Odyssey and Ulysses weren't separated by millennia, would Ulysses be infringing?
And if so, does that mean you believe Ulysses is not in fact original creative expression? Do you believe it is a derivative work that is only acceptable because of the time that has passed?
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I haven't read Ulysses, so I can't comment.
With regard to your other questions, I think most (perhaps all) derivative works contain at least some original creative expression, and some contain quite a lot of valuable creative expression.
As far as the passage of time, yes, that is certainly what makes the derivative works acceptable under copyright law. As a matter of what the law *should* be, I think copyright terms are too long right now.
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Omg... Epic fail.
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I use it as an example because it is widely accepted to be one of the greatest English language novels ever written, and it is a direct allegory of the Odyssey. However, it seems to me that all English scholars agree it is one of the most original works ever written: despite the fact that it borrowed the underlying idea of the Odyssey, it also combined that with new ideas and expressed it all in a way that revolutionized literature.
My point being that even if they weren't separated by time, it should still be considered an original work - and yet by your interpretation of the law, in that situation, it would be deemed infringing and the world would have been deprived of a great literary masterpiece.
Now, from what I understand about this book, it's *not* a masterpiece, but that's not what's important. If it's significantly original, which all evidence seems to say it is, then I shudder to think of it being banned.
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I don't think just adding some original material gets you, or should get you, out of the woods in a copyright sense.
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True.
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I got one at Powells
Screw the ban
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Let's all write a sequel CITR
I just got Dragon Dictate software. Perhaps it can be a stream of consciousness treatises on what Mr. H thinks about how intellectual property rights have run amuck.
"It was the best of times (for patent trolls), it was the worst of times (for innovation)."
I know ... different book.
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C'mon, really??
Look at it this way...
What would happen if I suddenly decided to write a book called "To Kill a Hummingbird" and the characters, setting, plot and historic elements bared a strong resemblance to "To Kill a Mockingbird"? If the court enforced an injunction (order to cease attempts to capitalize on someone else's IP) would that too be book banning? Of course not.
There are plenty of legitmate cases of unfair government involvement. Please take a moment to understand the situation for what it ISN'T before you begin protesting what you think it might be.
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Re: C'mon, really??
As long as you were not copying passages directly or stealing the exact names of character, it would be the exact same situation. That is, it Would be a rather unfair and questionable book banning.
If i write something with elves and dwarves and humans and other races fighting a Dark Lord, am i copying The Lord Of The Rings? maybe stylistically. Does that mean i am infringing and stealing and need to have my book banned by law?
no. It does not work that way,the law is not meant to simply lock up vast sections of creative expression because someone wrote a book somewhat like it one time.
as for "Nobody is banning books."
Permanently Banned From Publication in the United States. Gee, sure sounds like a ban to me.
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A comment from someone who's read the book
http://docs.justia.com/cases/federal/district-courts/new-york/nysdce/1:2009cv05095/346633/2 0/
It highlights how the newer book is clearly a commentary on the old one, and in fact, much more complex than the original story -- which would, once again, suggest that this is not a mere copy, and should not be banned.
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Re: A comment from someone who's read the book
with ya so far
"...and should not be banned."
Well, that's not a necessary conclusion from "is not a mere copy."
Anyway, the declaration interestingly acknowledges that the book does copy (or include, or whatever verb you want to use) the Holden Caulfield character, though he is identified as "Mr. C," which pretty much blows the "didn't copy expression" argument out of the water, I think.
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Re: Re: A comment from someone who's read the book
It seems quite clear that, as the professor states, this novel is essentially a literary criticism. It is clothed in fiction, perhaps, but stripped of those trimmings the ideas contained could also be expressed in an academic paper on the Holden Caulfield character. It is an entirely new work that directly comments on, critiques and presents hypotheses about two things: the author J. D. Salinger and his character Holden Caulfield. The fact that this is delivered in a combination of first- and third-person narratives is immaterial. We have been talking alot about the idea/expression dichotomy, but the fact is that this work is not just an original expression but also not even the same ideas - it is a critical commentary upon those ideas.
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Re: A comment from someone who's read the book
What A Phony: I read the banned Catcher in the Rye "sequel" so you don't have to, by Juliet Lapidos at Slate.
Obviously, she does not share Martha Woodmansee's high opinion of the book. But even she does not believe that it should be banned. She compares the injunction against this book with the injunction against Joyce's Ulysses; and, in fact, does not even believe it is an "unauthorized sequel."
For the curious, here is the plot, as described in the review:
If that is actually the book's purpose, it's a bit ironic that banning the book achieved it, while reading the book does not.
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Talk about boring...
ALL the characters are a bunch of unlikable idiots and did I mention how damn boring the whole thing is?
Seriously, its probably the most boring short novel I've ever forced myself to read.
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Nothing to do with Free Speech
That is what free speech is about..
Its not about being allowed to say what you like, when you like, or any such other crap. It does not give you the right to take the work of someone else, and 'rework' it for your own profit and gains.
The court did exactly what it was supposed and required to do, free speech did not come into this case at all.
seems the only person who does not see this for what it is, is you Mike. '
Perhaps you need to brush up on your constitution.. before you make comment..
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Re: Nothing to do with Free Speech
Damn, I only thought you were retarded but you actually are a lost cause. Don't breed!
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Re: Nothing to do with Free Speech
Now, if you ignore that and don't read it, I leave you to stew in your own ignorance. I just ask that you don't come here and bother us.
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Not that simple
Nobody has a copyright on boy wizards who fight a dark lord. But, when you add in an English school of witchcraft and wizardry which is broken into four houses, a lightning-shaped scar, a government organization that keeps the existence of magic secret from non-magic folk, a giant groundskeeper, killing basilisk with a magic sword and so on, at some point, you're not just borrowing ideas from JK Rowling -- you're copying her expression. And, as a matter of law, that point is somewhere before you start copying her exact words.
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