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.
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regna
(no subject)
Date: 2009-06-23 08:57 am (UTC)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.