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.
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