Copyright and Catcher in the Rye

[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.

Comments

[anthimaeria.livejournal.com]

This is really interesting - you should cross-post to 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.

[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.

[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.

[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.

[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.

[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.