roh_wyn: (law)
[personal profile] roh_wyn
An article in the The New York Times this weekend described the case of a Frederik Colting's fictional extrapolation of JD Salinger's (in)famous work, Catcher in the Rye, featuring a 76-year old Holden Caulfield. Colting writes under the pseudonym "JD California" and the book has already been published in the UK.

Salinger's lawyers are, of course, arguing copyright infringement, because the new book is allegedly derivative of Catcher, and that in addition to Holden Caulfield, the book also features several of the supporting characters from Salinger's novel.

Colting's lawyer is, naturally, arguing fair use. More specifically, because Colting's characters inhabit a parallel universe relative to Salinger's characters, his lawyers are casting his book as a form of literary criticism of Catcher in the Rye.

As someone who writes fanfiction, I'm almost obsessively interested in fair use cases, so naturally, this one caught my eye. What I'm particularly intrigued by is the idea of derivative works cast in alternate universes as "literary criticism". My personal experience (as a reader of fanfiction) is that most AU fiction falls well short of the mark of true criticism. I know a number of writers who cast their stories as "meta commentary" on the source material, and I think those sorts of fics skirt the boundaries of criticism, but still fall squarely within the scope of "derivative work."

This is probably why fanfiction writers routinely fall back on the "transformative" part of the fair use argument. (In my opinion, most fanfiction is not properly transformative either, and I'm sure the folks at the Stanford Fair Use Project would agree, lol). Fanfiction may ultimately be fair use for some other reason, but I doubt it will be because of a transformation of the original.

Finally, something that Salinger's lawyers brought up fascinated me. Part of their argument against Colting's book is that Colting is trying to trade on the popularity of Salinger's original book. This strikes me as specious and somewhat circular (although quite standard in these sort of cases).

Ignoring copyright law for the sake of argument, all books in a genre attempt to trade on the popularity of some other work in that genre. But the vast majority of these works are not derivative or violative of copyright. For example, I have no doubt that both JK Rowling and Christopher Paolini have, to varying degrees, relied on the popularity of Tolkien's works to create a niche market for their own books. But I don't think either the Harry Potter series or Paolini's Inheritance books infringe the Tolkien Estate's copyrights.

To take this even further, building on existing popular tropes (i.e. trading on their popularity), whether they are simply myth or part of a published work is the most important (and common) way to advance knowledge and literature, and even commerce. Tolkien himself used common folkore to build his legendarium, and I'm certain that half the television programs and movies in the world would not be made if it wasn't for other TV shows and movies that came in the past. Trading on popularity makes the world go round.

(no subject)

Date: 2009-06-23 02:30 am (UTC)
From: [identity profile] anthimaeria.livejournal.com
This is really interesting - you should cross-post to [livejournal.com profile] fandom_lawyers. I believe the book infringes Salinger's copyright. Now my grasp of copyright law is shaky at best, but I think the use of specific characters from Catcher is dispositive. Contrast this with Harry Potter and other books which used more generic elements found in Tolkien's work, and also in mythology.

(no subject)

Date: 2009-06-23 02:58 am (UTC)
From: [identity profile] roh-wyn.livejournal.com
Oh, I hadn't considered posting that there, but since my ultimate aspiration is to end up fandom_wank, I should probably do that! ;)

I agree that the book violates Salinger's copyright. The issue really is whether the author has a fair use affirmative defense (and I don't really think he does, but I can't be certain until the order comes down from the court, lol!)

Also, you're right about Harry Potter. While it may use some elements that are common to Tolkien and the fantasy genre in general, there are sufficient differences between the book that there is essentially no infringement. I just brought that up to show that, IMO, the "trading on popularity" argument is a bit weak.

(no subject)

Date: 2009-06-23 04:08 am (UTC)
ext_2474: (Default)
From: [identity profile] lankyguy.livejournal.com
I think the use of specific characters from Catcher is dispositive.

this.

(no subject)

Date: 2009-06-23 02:36 am (UTC)
From: [identity profile] dcwash.livejournal.com
What I'm particularly intrigued by is the idea of derivative works cast in alternate universes as "literary criticism". My personal experience (as a reader of fanfiction) is that most AU fiction falls well short of the mark of true criticism. I know a number of writers who cast their stories as "meta commentary" on the source material, and I think those sorts of fics skirt the boundaries of criticism, but still fall squarely within the scope of "derivative work." This is probably why fanfic writers routinely fall back on the "transformative" part of the rair use argument. (In my opinion, most fanfiction is not properly transformative either, and I'm sure the folks at the Stanford Fair Use Project would agree. Heh). Fanfiction may ultimately be fair use for some other reason, but I doubt it will be because of a transformation of the original.

I've never heard the criticism argument before, and I'm not buying it now that I have heard of it. It seems like too elliptical an approach if one is really trying to offer come kind of serious critical commentary on a work. I agree with you in that most fanfiction isn't particularly transformative, either. In fact, I'd think fanfiction pretty much defines "derivative," since it starts with characters and scenarios already created and published (or broadcast, or whatever) by someone else.

an_lagat_glas said something once about all of medieval literature being fanfic, meaning somebody wrote the first version of the Merlin story, say, and then everybody else expanded on it because of popular demand.

(no subject)

Date: 2009-06-23 03:08 am (UTC)
From: [identity profile] roh-wyn.livejournal.com
It's a well-established canon of copyright law that you can use extensive parts of someone else's work in your own publication, if your goal is to critique that work, or even to parody it. To that extent, if the facts establish that a piece of fanfiction (for example) is intended as a criticism/critique of the original, it probably passes muster as fair use(especially as most fanfiction is not-for-profit).

The notion is that criticism or parody completely "transforms" the original, such that the new work falls outside the scope of the original creation, even though it replicates some of the characters and scenarios in the original work. (I think this is sort of a grey area for fanfiction, because the stories themselves are never that "transformed").

[livejournal.com profile] an_lagat_glass has forgotten more about literary criticism than I ever even knew, so I'd go with her version, lol! It's true though...almost all medieval literature is entirely derivative of some genre or medium that came before it. All of Shakespeare's expand on history, legend and even gossip that was well known in his own time.

(no subject)

Date: 2009-06-23 04:16 am (UTC)
ext_2474: (Default)
From: [identity profile] lankyguy.livejournal.com
I view the new book as copyright infringement. I say that as someone who holds two copyrights and has also written fanfiction!

I'm a bit stunned it got published at all.

We all build on what came before us but seriously that is outright theft. It would be akin to someone writing a follow up to Gone With the Wind, while Mitchell was alive. It's ludicrous; a transformative criticism, my butt.

(no subject)

Date: 2009-06-23 04:22 am (UTC)
From: [identity profile] roh-wyn.livejournal.com
It's ludicrous; a transformative criticism, my butt.

Oh, I think this argument fails in this case, even more than it does for most fanfic interpretations. That said, I'm still curious what the judge has to say in her order/opinion.

I'm a bit stunned it got published at all.

Ditto. I looked up the copyright provisions in the UK, notably the "fair dealing" issue. I think it's limited to non-commercial use of copyrighted material...and this book definitely does not qualify.

Now I want to see the author's license agreement with his UK publisher. I wonder if they agreed to publish, but refused to indemnify him for any future legal trouble. ;)

(no subject)

Date: 2009-06-23 08:39 am (UTC)
From: [identity profile] major-clanger.livejournal.com
It would be akin to someone writing a follow up to Gone With the Wind

You are aware of Suntrust v Houghton Mifflin (http://en.wikipedia.org/wiki/Suntrust_v._Houghton_Mifflin)? Yes, The Wind Done Gone was written long after Mitchell died, but I'm assuming that what you mean is 'whilst Mitchell's copyright still subsisted'.

(no subject)

Date: 2009-06-23 11:38 am (UTC)
ext_2474: (Default)
From: [identity profile] lankyguy.livejournal.com
I know about that, but that actually is a legitimate parody. Similarly 'Bored of the Rings' was a parody of LoTR. And while not humorous 'Wind Done Gone' at least avoided using the characters names, and was published after Mitchell died.

(no subject)

Date: 2009-06-23 07:10 am (UTC)
From: [identity profile] oceaxe.livejournal.com
I think the definition of "transformative" needs to be examined and/or revised. To transform another author's work, all one must do (imo) is write something that the original author would clearly never have done, for example homoerotic stories about Harry Potter and Draco Malfoy. This addresses the "impact on the market" query in fair use in two ways. First, it is clear that such stories would never replace the demand for the source work. But even more importantly than maintaining the flow of money to the original author that presumably forms the impetus for writing in the first place (eyeroll), such stories _expand_ the market by providing new material that otherwise would never be created. This increases innovation, which after all is the reason why the bill of rights allowed for copyright and patents to restrict the freedom of the press/speech, a freedom which otherwise was supposed to be infringed by no law.

I'm really tired and sorry that the above probably made no sense.

(no subject)

Date: 2009-06-23 02:36 pm (UTC)
From: [identity profile] roh-wyn.livejournal.com
You make as much sense tired as I do perfectly active. ;)

This increases innovation, which after all is the reason why the bill of rights allowed for copyright and patents to restrict the freedom of the press/speech, a freedom which otherwise was supposed to be infringed by no law.

I was thinking about this exact thing yesterday, actually. It seems to me that the innovation part works reasonably well with the patent regime. A patent expires twenty years after filing, and so after a reasonable period of exclusivity, the invention goes into the public domain. But copyright term is life+70 years. That's a very long time, which makes me wonder what sort of "innovation" is really contemplated by copyright protection. It seems to me that some amount of exclusivity is necessary to encourage dissemination of original ideas, but you're talking (in most cases) of protection that lasts over a century. I think this is total overkill.

(no subject)

Date: 2009-06-24 05:57 am (UTC)
elf: Rainbow sparkly fairy (Default)
From: [personal profile] elf
Copyright is Life+70 in the UK, and much of the world. In the US, it's more complicated than that. (It's a flat number of years from publication date... unless it was published between 1923 and 1963 and renewed, or unless published by a corporation, in which case it's a bit different from published by a person.) But it's still an insanely long time, based on "hey! These works are still earning money for us!" rather than any awareness of the purpose of the public domain.

IMO, copyrights in the US (and probably the rest of the world) will return to a semblance of sanity when Disney loses control of The Mouse, and the universe fails to collapse into a seething ball of tacky Mickey porn.

some amount of exclusivity is necessary to encourage dissemination of original ideas

I want it returned to 28 years, with an option to renew once. Throw everything before 1953 into the public domain... can you imagine the digital movie conversion projects that would explode in universities? The spinoffs & sequels of childhood favorite books? The documentaries of WWII, containing news clips and popular songs and newspaper stories?

It's been pointed out that Mein Kampf is in the public domain, but Diary of Anne Frank is not, and there's... something oddly wrong about that.

(no subject)

Date: 2009-06-24 04:09 pm (UTC)
From: [identity profile] roh-wyn.livejournal.com
IMO, copyrights in the US (and probably the rest of the world) will return to a semblance of sanity when Disney loses control of The Mouse, and the universe fails to collapse into a seething ball of tacky Mickey porn.

This.

(no subject)

Date: 2009-06-23 08:57 am (UTC)
From: [identity profile] major-clanger.livejournal.com
This sort of case occupies the murky ground between copyright infringement and passing off. Passing off is a tort that is more strongly developed in English law and the legal systems of Commonwealth countries, although my understanding is that it exists to an extent in US law under the Lanham Act.

To establish passing off, you need to show goodwill, misrepresentation and damage.

- 'Goodwill' is, in effect, positive reputation with potential customers. A successful author with a substantial fanbase is likely to have this.

- 'Misrepresentation' means that someone else markets their product so it confusing resembles yours. Passing off is usually in terms of product appearance and packaging ('get-up') but strong points of similarity in a film or book might also be deemed to be misrepresenting its origin.

- 'Damage' means actual lost sales or a good case that sales will be diverted.

Clearly, if the parody is very obviously sold as being such, or being under another name, then misrepresentation is less likely. But here, on the basis of the cover (http://www.examiner.com/x-1502-Boston-Literary-Scene-Examiner~y2009m5d14-Sequel-to-Catcher-In-the-Rye-published) it seems that the dissociation isn't very strong. The title is clearly reminiscent ('Coming through the Rye') and 'John David California' is close enough to 'Jerome David Salinger' that a reader might assume some sort of connection.

It will be interesting to see where this case goes. The Gone with the Wind / The Wind Done Gone case gives one legal marker about unauthorised sequels, but it is always much more useful to have a second case to be a comparator.

(no subject)

Date: 2009-06-23 02:40 pm (UTC)
From: [identity profile] roh-wyn.livejournal.com
Thanks for the additional information.

The "damage" part of it interests me. In general, I believe that derivative works do not lead to lost sales or diversion of sales of the original work. (Indeed, I think in most cases (and especially with fanfiction), there is a good chance of increased sales of the original).

In fact, the derivative works most likely to "damage" sales of the original are those that depart so significantly from the original as to be "transformative."

This particular case does seem to have elements of "passing off", and I wonder if the corresponding legal argument is the one Salinger's lawyers make here...i.e. the attempt to "trade on popularity."

(no subject)

Date: 2009-06-23 05:44 pm (UTC)
From: [identity profile] pseudohistorian.livejournal.com
This is a good, cogent analysis of the situation with Colting, and of fanfic's copyright status in general...

I tend to agree with you that fan fiction, on the whole, is neither critical nor transformative, and it's actually refreshing to find someone who reads it but is still objective enough to reach this conclusion.

(no subject)

Date: 2009-06-23 06:29 pm (UTC)
From: [identity profile] roh-wyn.livejournal.com
Thanks!

it's actually refreshing to find someone who reads it but is still objective enough to reach this conclusion.

Heh. I tend to catch quite a bit of flak from the folks in fandom on this issue. Obviously, fandom has a vested interest in casting all fanfic as essentially transformative, to bolster the fair use argument.

For now, I think the fact that fanfiction is largely not-for-profit is probably dispositive (to the extent that anything in a highly fact-specific multi-factor test can be dispositive).

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