Settlement Details On The Banning Of Unauthorized Catcher in The Rye Sequel Even More Troubling

from the free-speech-isn't-free dept

Wed, Jan 19th 2011 7:13am — Mike Masnick

Back in December, we were disappointed to find out that the author of an "unauthorized sequel" to Catcher in the Rye had settled the lawsuit brought by the estate of JD Salinger, such that the book was permanently banned in the US. It seemed like a serious blow to basic First Amendment freedoms, to have the US banning books that have significant unique expression. However, drew points us to some more details about the settlement which seem really troubling from a free speech standpoint. The book is banned in the US, but not elsewhere, though the author, Colting, has to change the title. But where it gets ridiculous is the following conditions:

Under the terms of the deal, Colting is forbidden from dedicating the book to Salinger.

It also prohibits him or any publisher of the book from referring to The Catcher in the Rye or Salinger.

They are also prevented from using the copyright claim or Salinger's so-called "ban" to promote the work.

Perhaps that last one is kind of understandable, but what's with banning him from dedicating the book to whomever he wants? How is that possibly a copyright issue?

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Filed Under: book banning, catcher in the rye, free speech

54 Comments

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Anonymous Coward, 19 Jan 2011 @ 7:19am

What a bunch of phonies!
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Anonymous Coward, 19 Jan 2011 @ 7:21am

Perhaps that last one is kind of understandable, but what's with banning him from dedicating the book to whomever he wants? How is that possibly a copyright issue?

It could imply knowledge and approval of the work. They don't want anything to do with the work period, in no way and no manner.

How hard is that to understand?
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Pixelation, 19 Jan 2011 @ 7:22am

Now I want one
Permanently banned in the US, huh? Now I want to buy a copy.
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Matt (profile), 19 Jan 2011 @ 7:26am

Re:
But you didn't answer how that's a copyright issue (and doesn't explain how you can legally ban someone from dedicating a book to someone).
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C.T., 19 Jan 2011 @ 7:27am

It's not a copyright issue, it's a contract issue
A settlement agreement is for all intents and purposes a contract. Breach of the settlement agreement would constitute a breach of contract -- it would not constitute copyright infringement unless the conduct underlying the breach was itself infringing. So, if the author violated any of the terms of the settlement agreement you listed, there would be no possible copyright claim.
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Dez (profile), 19 Jan 2011 @ 7:31am

Re:
http://www.youtube.com/watch?v=xcCO6E4NUs8
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Anonymous Coward, 19 Jan 2011 @ 7:46am

Re: Re:
As part of an agreement, you can specify almost anything. Basically, in return for allowing him to publish the book in some manner (even though it will still end up playing somewhat off of CitR), they agree to those terms, and as a result, he no longer has to worry about copyright litigation.

Even at that, mentioning JD in any way could be a connection, which in turn could cause some confusion, that would lead back to the main issue at hand. It's a list of things not to do in order to avoid having problems.

Remember, it says "under the terms of the deal". They could have agreed to have every other page in pink, and while it would be odd, it would be part of the agreement.

Honestly, it sounds like a list the plaintiff (or their lawyers) wrote up, and was agreed to because there was no intention to do any of that anyway. It's a non-issue except maybe for TD, who can't accept this ruling or agreement very well. TD sort of needs to learn to suck it up on this one.
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halley (profile), 19 Jan 2011 @ 7:51am

mechanical turk meets streisand?
I've followed this case a little bit, and it reminds me a bit of the "Wind Done Gone" case.

I have also wondered if various fans could/would basically thumb their noses at the ridiculous contract. If fifty or a thousand fans (or artificial fans) blogged noisily about "the Sequel to Salinger's Catcher in the Rye," what could they possibly do about it? Unsolicited PayPal donations to the author, and underground e-book copies flow both ways across the embargo.
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Killer_Tofu (profile), 19 Jan 2011 @ 7:59am

Re: Re: Re:
Just more proof that Copyright goes against the 1st amendment and must be either eradicated or greatly restricted.
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jprlk, 19 Jan 2011 @ 8:04am

Banned in Canada, too.
http://www.cbc.ca/arts/books/story/2011/01/13/salinger-lawsuit.html?ref=rss

And we're normally not as trigger-happy with that kind of thing...
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Hex (profile), 19 Jan 2011 @ 8:05am

Hadn't heard of it, and probably wouldn't have either. Now I want to read it.
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Marcus Carab (profile), 19 Jan 2011 @ 8:19am

Re: Banned in Canada, too.
From that article it doens't sound like it was us, but rather part of their signed agreement. To my knowledge this has never gone before a Canadian judge.
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Anonymous Coward, 19 Jan 2011 @ 8:24am

yay for foreign amazon sites!

http://www.amazon.co.uk/Years-Later-John-David-California/dp/9185869546/ref=sr_1_1?s=books &ie=UTF8&qid=1295454073&sr=1-1
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mattarse (profile), 19 Jan 2011 @ 8:26am

Re: Now I want one
Well, here you go -

http://www.amazon.co.uk/Years-Later-John-David-California/dp/9185869546

I'm thinking to buy a copy myself, I wonder if US libraries would be able to accept it as a donation?
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Anonymous Coward, 19 Jan 2011 @ 8:34am

Our system of injustice at work.
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average_joe (profile), 19 Jan 2011 @ 8:39am

It seemed like a serious blow to basic First Amendment freedoms, to have the US banning books that have significant unique expression.

It's not being banned for its original expressive speech, it's being banned for its infringing speech. Infringing speech is not protected by the First Amendment.

While the copying it contains is not literal, it is non-literal copying. The test for non-literal copying is whether or not it's substantially similar to the original. The district court held that it was substantially similar, and the court of appeal unanimously agreed.
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MrWilson, 19 Jan 2011 @ 8:42am

Re:
I wonder if anyone will be confused by the first 3 "customers who bought this also bought" books are by or about Salinger...

This is another example of people misunderstanding the way information works. Information is like culture. You can't kill it by silencing one person. You can't dictate to others what they choose to do with it once it is uttered (unless you're an oppressive totalitarian regime). We know the name of Herostratus despite the attempts to condemn him to obscurity.

The book will be posted online and anyone who's interested will find it and no one will deny that it has a connection to Catcher in the Rye. Just because Salinger or his estate had a problem with it doesn't mean the readers have to pretend that a connection doesn't exist.

Salinger is one of my favorite authors, but he gave up the right to complain about this when he stopped publishing. There was demand for more of his writing, even if it had nothing to do with The Catcher in the Rye. Because of the hole created by his silence, that demand had to be filled by someone else. And I doubt I'll enjoy this "sequel" as much as I do Salinger's writing.
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Danny, 19 Jan 2011 @ 8:43am

A dirty trick if you ask me
They are also prevented from using the copyright claim or Salinger's so-called "ban" to promote the work.

To say "Salinger's so-called 'ban'..." sounds to me like the Salinger estate really doesn't think its a ban when that is just what it is. And prevention from using the copyright claim is just a PR move.

The words 'ban' and 'copyright' are pretty hot words when talking about content and media. The Salinger estate can't help but know that if those two things were to come up it would draw more attention (and probably sales) to the book, which is what they don't want. If anything I'd make sure there is something in their telling them they must explicitly say that this new book is not officially tied to the original CitR. That is I would make sure of that if my concern were about making sure buyers know the difference. If my concern were to try to block sales....
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Chronno S. Trigger (profile), 19 Jan 2011 @ 8:52am

Re:
"The test for non-literal copying is whether or not it's substantially similar to the original."

Another reason not to use my real name when writing stories. If something doesn't have to be directly copied just "substantially similar"...
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Anonymous Coward, 19 Jan 2011 @ 8:58am

I'm an American, and I just ordered it from amazon.co.uk. I think it's great that the land of the free is restricting my freedoms. Thank you, Internet!
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Anonymous Coward, 19 Jan 2011 @ 8:59am

Re: Re: Now I want one
"I wonder if US libraries would be able to accept it as a donation?"

Probably not anymore - See:

http://www.techdirt.com/articles/20101213/09353512255/supreme-court-ruling-you-may-not-be-ab le-to-legally-sell-product-first-made-outside-us.shtml

and

http://www.techdirt.com/articles/20100708/15263910135.shtml
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Dark Helmet (profile), 19 Jan 2011 @ 9:01am

Re: Re:
"Another reason not to use my real name when writing stories. If something doesn't have to be directly copied just "substantially similar"..."

Then the ten or twelve basic plots for fiction all go right out the window? Ambiguous words like that are the reason laws can be abused....
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average_joe (profile), 19 Jan 2011 @ 9:03am

Re: Re:
Another reason not to use my real name when writing stories. If something doesn't have to be directly copied just "substantially similar"...

The idea is that otherwise you could escape liability for infringement by simply making immaterial changes to the original.
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average_joe (profile), 19 Jan 2011 @ 9:05am

Re: Re: Re:
Then the ten or twelve basic plots for fiction all go right out the window? Ambiguous words like that are the reason laws can be abused....

We're talking about copying the expression, not the idea. The "basic plots" are safe, as they have always been.
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Dark Helmet (profile), 19 Jan 2011 @ 9:15am

Re: Re: Re:
And so instead we're left with ambiguous words that result in lawyers and judges determining the value of art with regard to how material the differences are.

Yeah, that oughtta work out well....
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Anonymous Coward, 19 Jan 2011 @ 9:16am

Re: Re: Re:
Define "immaterial." How different must it be to be material? Do you have a quantifiable number?
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average_joe (profile), 19 Jan 2011 @ 9:16am

Re: Re: Re: Re:
And so instead we're left with ambiguous words that result in lawyers and judges determining the value of art with regard to how material the differences are.

Yeah, that oughtta work out well....

How else could such a determination be made if not on a case-by-case basis?
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Dark Helmet (profile), 19 Jan 2011 @ 9:33am

Re: Re: Re: Re: Re:
"How else could such a determination be made if not on a case-by-case basis?"

I don't know that it could, which is what makes all of this difficult. The only other solution appears to be taking the law out of the equation entirely by making non-literal copying a non-offense. Obviously there's problems there too, but in my opinion it's the lesser of the two evils....
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average_joe (profile), 19 Jan 2011 @ 9:42am

Re: Re: Re: Re:
Define "immaterial." How different must it be to be material? Do you have a quantifiable number?

Of course there's no quantifiable number. That's just not how these things work. There are certain tests that are applied. The district court explains that in the opinion. The finding of substantial similarity here was simple since Colting argued that his novel was a parody. By doing so, he ADMITTED it was substantially similar. It also didn't help his case that he referred to his book as a "sequel" right on the book's cover.

You can read the district court's opinion here: http://www.scribd.com/doc/17040458/Salinger-v-Colting-Opinion

And the Second Circuit's opinion here: http://www.scribd.com/doc/17040458/Salinger-v-Colting-Opinion
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Anonymous Coward, 19 Jan 2011 @ 9:53am

Re: Re: Re: Re:
It isn't a question of copyright. It is an agreement between two parties. Nothing more and nothing less. Nothing in copyright specifies this. This is what they have agreed to.

It has nothing to do with first amendment rights. That is a load of horse hockey.
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Marcus Carab (profile), 19 Jan 2011 @ 9:56am

Re: Re: Re: Re:
But what makes "basic characters" and "basic settings" copyrightable when "basic plots" aren't?
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Marcus Carab (profile), 19 Jan 2011 @ 9:59am

Re: A dirty trick if you ask me
The Anti-Streisand Clause perhaps?
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Chronno S. Trigger (profile), 19 Jan 2011 @ 10:02am

Re: Re: Re: Re: Re:
This book was a sequel as you said. The story was different, the situations were different, from what I understand the characters were different. The simple fact that it was a sequel is why this book was injunctioned. The vast majority of that book was different from the original. The original idea wasn't copied, just expanded on.

Legally it was the correct outcome (morally probably not), this was an unauthorized sequel. But the law is vary ambiguous, and that is where my worry sits. If something that is only built upon something else is considered copyright infringement, then something that just looks like it's built upon something else can be as well. How many new anythings do you see that are completely unique.

I personally think fan fictions should be legal, and that's really all this is, a fan fiction.

(Is anyone else having problems posting with Firefox today?)
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average_joe (profile), 19 Jan 2011 @ 10:07am

Re: Re: Re: Re: Re:
They're not. The things being copied here were particular expressions. How could it be a parody and a sequel unless the original expression was copied?
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Killer_Tofu (profile), 19 Jan 2011 @ 10:08am

Re: Re: Re: Re: Re:
They would not have been able to sue, and force such a stupid agreement if it wasn't for copyright. There is no reason they should have been able to sue over this book to begin with (and they sued because of copyright). So yes, this does have to deal with copyright. The specific terms of their agreement might not have anything to do with copyright, but it shouldn't have gotten that far to begin with.
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Killer_Tofu (profile), 19 Jan 2011 @ 10:13am

Re: Re: Re: Re: Re: Re:
(No, I'm not. Just you =P)
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Anonymous Coward, 19 Jan 2011 @ 10:18am

Re: Re: Re:
TD sort of needs to learn to suck it up on this one.

Yeah, just suck it up ... all we're doing is banning books.

For lack of better words, fuck you.
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taoareyou, 19 Jan 2011 @ 10:22am

Sales Boots
This entire drama has attracted attention and brought in sales where there would not have been. Despite any agreement, it is impossible for the controversy to not be a promotional tool. The author himself doesn't need to do this, so it was easy to agree to in the settlement.

He also doesn't need to dedicate it to JD because again, the statement that he is not permitted to does that for him.

As for the ban in the US? Really? Who thinks in today's global Internet business world that will hurt him? The only people missing out are the US booksellers. Everyone in the US who wanted to read the book, will be able to buy it. Even people who aren't interested in the book but just want it because it's banned will be able to buy it.

This settlement is all WIN for the author and really just embarrassing for the Salinger estate. They did the author a huge favor.
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Marcus Carab (profile), 19 Jan 2011 @ 10:45am

Re: Re: Re: Re: Re: Re:
Well, on the parody side, everything about this work would seem to fall under the established fair use defenses for parodies.

On the sequel side, if it's telling a brand new story using evolved and updated versions of the original characters and settings, is that not arguably a new expression of the same idea, rather than a copying of the expression?
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Anonymous Coward, 19 Jan 2011 @ 11:10am

Re: Re: Re: Re: Re: Re:
The issue of copyright is about the book itself, not anything else. The terms of the agreement are not specific about copyright, but an agreement by which they won't push any further on copyright issues, even though they very well could have.

It isn't "copyright forbids him from putting in a dedication", that is only because of an agreement to avoid further legal issues. The courts ruled, and found in favor of the plaintiff. Suck it up.
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Killer_Tofu (profile), 19 Jan 2011 @ 11:14am

Re: Re: Re: Re: Re: Re: Re:
I already acknowledged all of that in the previous post I made. Is there another point you are trying to make?
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Killer_Tofu (profile), 19 Jan 2011 @ 11:22am

Re: Re: Re: Re: Re: Re: Re:
Additionally, you still have no response at all other than to repeat your previous talking point (which I already acknowledged) as to my comment that copyright is why they came to this agreement and me saying copyright needs to be scaled back (or removed).
I will never support censorship. Judging by your glee in defending this and telling everyone to just suck it up though, you are in full favor of censorship. If you are not, then I do not see how you can support copyright as it is since it brought all of this about.
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Matt P (profile), 19 Jan 2011 @ 12:12pm

Good that copyright law is protecting the works of these poor creators from filthy pirates.

And I'm glad dead authors can keep on making a living while telling me what I can't read. Another win for the moral virtues of monopoly.
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vivaelamor (profile), 19 Jan 2011 @ 1:05pm

Re: Sales Boots
"Everyone in the US who wanted to read the book, will be able to buy it. Even people who aren't interested in the book but just want it because it's banned will be able to buy it."

Until an international treaty requires websites to not sell to anyone with a US IP address.
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Anonymous Coward, 19 Jan 2011 @ 1:20pm

Re: Re: Re: Re: Re: Re: Re: Re:
No. As you should've realized several posts ago, you two are talking about two different points entirely.
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RD, 19 Jan 2011 @ 1:51pm

Re: Re: Re: Re: Re:
"The finding of substantial similarity here was simple since Colting argued that his novel was a parody. By doing so, he ADMITTED it was substantially similar. It also didn't help his case that he referred to his book as a "sequel" right on the book's cover."

Ah, right, so parody is no longer allowed now? Guess there are a number of authors who are going to be in DEEP trouble now that parody is illegal and no longer a part of the exceptions to copyright law. Thanks for clearing that up.
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average_joe (profile), 19 Jan 2011 @ 2:02pm

Re: Re: Re: Re: Re: Re:
Ah, right, so parody is no longer allowed now? Guess there are a number of authors who are going to be in DEEP trouble now that parody is illegal and no longer a part of the exceptions to copyright law. Thanks for clearing that up.

Don't be ridiculous. You should read the opinion I linked to. The court went into great detail about how this wasn't actually parody.
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Karl (profile), 19 Jan 2011 @ 3:06pm

Re:
It's not being banned for its original expressive speech, it's being banned for its infringing speech.

So, if it trivially changed the infringing speech - changed the character's names, for example - it could be sold in the U.S.?

That's sort of a curious solution, I think.

I'm still not sure why this shouldn't be inconsistent with the "Wind Done Gone" case, where the judge ruled that an outright injunction (as opposed to an award of damages) was prior restraint.
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G Thompson (profile), 20 Jan 2011 @ 1:06am

Re: Re: Re:
Once upon a time I...

Oops that infringes..I'll start again.

In the beginning I...

damn... once more into the breach

It was the worst of times and probably the best of times....

ah bugger it
I give up.. never gunna write my novel now ;(
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G Thompson (profile), 20 Jan 2011 @ 1:09am

Re: Re: Sales Boots
Good luck with that, because all that will happen is someone in the USA will get someone else from outside the USA to buy it and then ship it to them once it arrives.

They will both then be classified as criminals and need to be flogged with the nearest huge tome of course.

We will probably need a RIAA Clone for Books then *eye roll*
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Killer_Tofu (profile), 20 Jan 2011 @ 6:09am

Re: Re: Re: Re: Re: Re: Re: Re: Re:
I do realize this. I was trying to point that out to the other AC but he refuses to acknowledge that Copyright is why they were forced to come to this stupid agreement to begin with. Without such horrible copyright there would have been no lawsuit, and thus, no agreement. It is pretty simple.
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vivaelamor (profile), 20 Jan 2011 @ 8:47am

Re: Re: Re: Sales Boots
"Good luck with that, because all that will happen is someone in the USA will get someone else from outside the USA to buy it and then ship it to them once it arrives. "

The point is that this stuff shouldn't be acceptable just because people can find a way around it.
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Kennyc, 20 Jan 2011 @ 9:57am

Fine with me
There is nothing wrong with the government making these choices for us. They know what's best.
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BearGriz72 (profile), 21 Jan 2011 @ 12:13pm

Re: Re: Now I want one
ROFLMAO

From Amazon UK link above:
Frequently Bought Together:

60 Years Later by John David California Paperback �6.39
The Catcher in the Rye by J. Salinger Paperback �4.89
Nineteen Eighty-four by George Orwell Paperback �4.53
Irony FTW!
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