Fair Use or Unauthorized Sequel?

14Jan10

Holden Caulfield’s editorial got me thinking about his dad’s ardent defense of Catcher in the Rye, so I thought I’d give others a chance to access the court opinion and try to provide a little insight into the legal issue of “fair use.” Here I have confined the discussion to the most significant of the four elements that are examined in determining whether something that might otherwise infringe on copyrighted material is nonetheless protected under the Fair Use Doctrine.

Last year, a Swedish gentleman named Fredrik Colting, writing under the pen name J. D. California, published (abroad) a novel titled 60 Years Later: Coming Through the Rye.  It is purportedly a narrative through the eyes of a 60 year-old Holden Caulfield.

Here is how one book reviewer describes it:

Coming Through the Rye’s plot re-introduces Holden Caulfield, or rather Mr C as he is called in the book, 60 years after he walked out of Pencey and took the train to New York. He’s an old man in his late 70s, who has been forced into a nursing home for his own good by his son. Colting thinks the teenage rebel would still be burning brightly in the senior citizen version of Caulfield and Mr C walks out of the nursing home, and jumps on a bus going to New York.

The story is told in the first person and, initially, Colting sprinkles some typical Holden-style vocabulary such as ‘and all’ and ‘phony’ as reminders of his famous past. The writing has none of the original’s abrasive style.

At first, Mr C can barely walk, yet he soon seems to be covering considerable distances around New York. Colting’s version of Caulfield is dazed and confused, and has a weak bladder. His main concern is his proximity to a bathroom and the elderly version of the world’s most famous teenage anti-hero pisses in doorways, on the street, in the park and also on himself. Why re-invent the teenage rebel as an old man? Why not give him a mortgage, a couple of kids and a pile of credit card bills to pay, and then let’s see how long his teenage angst lasts?

The initial reaction to Coming Through the Rye is that this book is simply harmless nonsense and Salinger should call off the dogs because his legacy is not under threat. However, three-quarters of the way through the novel, Salinger’s anger becomes understandable. Colting decides to send Mr C to Cornish, New Hampshire, to meet J.D. Salinger himself. Reworking Salinger’s most famous creation is one thing, but writing the author himself into the story is ridiculous and asking for trouble. Did Colting really expect a man who won’t even answer the doorbell, let alone allow Hollywood or television to touch his work, to happily play along?

Of course he wouldn’t. When Colting (or California) and his publishing company sought to publish the book in the Unites States, the nonagenarian made a few calls from his New Hampshire lair to his New York lawyers at Davis Wright Tremaine LLP, and before Holden Caulfield could say “for crying out loud,” a federal district court judge issued a preliminary injunction, barring Colting and his team from “manufacturing, publishing, distributing, shipping, advertising, promoting, selling, or otherwise disseminating any copy of 60 Years or any portion thereof, in or to the United States.”

The court’s decision follows a lengthy line of cases that analyze U. S. copyright law, and provides any aspiring novelist with a roadmap to understanding the concept of “fair use,” which articulates when one author may lawfully use the copyright-protected work of another.

Copyright law addresses “the inevitable tension between the property rights it establishes in creative works, which must be protected up to a point, and the ability of authors, artists, and the rest of us to express them- or ourselves by reference to the works of others, which must be protected up to a point. The fair-use doctrine mediates between the two sets of interests, determining where each set of interests ceases to control.”[1] “At stake in this case are the incentive to create original works which copyright protection fosters and the freedom to produce secondary works which monopoly protection of copyright stifles – both interests benefit the public.”[2]

In order to strike this balance between competing interests, the federal copyright law codifies the concept of “fair use.” But to the chagrin of non-lawyers, the statute doesn’t articulate bright line standards that ordinary, sentient beings can follow. Instead, it applies “factors to be considered” in “determining whether the use made of a work in any particular case is a fair use.”[3] Those factors are the following:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

Delightful. More work for lawyers!

What do these “factors” mean to us, the aspiring novelists? What did they mean to J.D. Salinger and J.D. California? (Say what you want about the merits of borrowing Holden Caulfield, but when a man named Frederik Colting dons the pen name “J.D.” anything in a campaign to sell a Catcher In the Rye follow-on, he deserves all of the skepticism that a federal judge can muster.)

Let’s take a look at just the first one, where most of the rubber meets the road. What are the considerations that go into examination of the “purpose and character” of the proposed use of the copyrighted material?

Examining the Purpose and Character of the Use

This inquiry asks whether the new work merely supersedes the objects of the original creation . . . or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is ‘transformative.'”[4]

The goal of copyright (to promote science and the arts) is generally furthered by the creation of transformative works, so the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.[5] Note that, contrary to some popular wisdom, a work of commercial fiction may indeed use prior copyrighted material – there is no black letter prohibition on commercial use. But its commercial element will be weighed against the transformative nature, so the task of weighing these competing values in advance of publication is daunting indeed.

What makes a work “transformative?” The statute provides an answer (of sorts) that looks to whether the use is “for criticism, or comment, or news reporting, and the like.”[6] Isn’t that illuminating? Criticism, comment and the like. What is “the like?” The Campbell court (which coined the phrase) gave partial answer when it held that “parody has an obvious claim to transformative value- and thus like other comment or criticism, may claim fair use under ß 107.” [7]

So, one may construct a parody of a protected work. What if the artist’s parody is extraordinarily successful in its transformativeness – so successful that it is a smashing commercial success? Does the profitability of the successful parody work against its fair use defense? Is commercial success what the court means by “commercialism?” We’ll have to wait for a work more transformative than Colting’s to find out.

The Salinger decision also noted the important distinction between parody, which “needs to mimic an original to make its point, and so has some claim to use the creation of its victim’s . . . imagination,”[8] and satire, which “critiques and comments on aspects of society more broadly,,… can stand on its own two feet, and so requires justification for the very act of borrowing.”[9] Quoting the Campbell decision gain:

[T]he heart of any parodist’s claim to quote from existing material, is the use of some elements of a prior author’s composition to create a new one that, at least in part, comments on that author’s works. If, on the contrary, the commentary has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another’s work diminishes accordingly (if it does not vanish).[10]

The court’s opinion undertakes a thorough review of both texts, aided by the affidavits of literary critics, and cites to dozens of examples in which the text of Catcher is loosely parroted in 60 years. The court did not find the same type of parodic elements in 60 Years that it found in Alice Randall’s The Wind Done Gone, which was not just a commentary on the Civil-War era American South, but a “specific criticism of and rejoinder to the depiction of slavery and the relationships between blacks and whites in Gone With the Wind.”  He was also stung by the fact that the original jacket to the book touted it as “. . . a marvelous sequel to one of our most beloved classics.”

Oddly to me, the court cites as evidence against Colting his desire that 60 Years constitute a “tribute” to the original, and this has me scratching my head. Not that it factors significantly in deciding against him, but can it be that the nature of transformativeness must be critical or parodic of the original work, as opposed to, say, elegaic?

Can an author utilize original copyrighted work for the purpose of creating a new, transformative work that praises the original?

Would such a work still be vulnerable to attack even if its effect were to enhance the market value of the original? Or is the originator free to disclaim his interest in the economic value of the work in favor of preserving its sanctity?


[1] Blanch v. Koons, 467 F.3d 244, 250 (2d Cir. 2006)

[2] Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1109 (1990)

[3] 17 U.S.C. ß 107

[4] Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994).

[5] Id.

[6] Id. at 578-579.

[7] Id. at 579.

[8] Id. at 580-581.

[9] Id.

[10] Id.

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6 Responses to “Fair Use or Unauthorized Sequel?”

  1. 1 Patti

    Pete,

    I’m with Salinger on this one, and I’m sorry if this is off topic, but I’m curious about the reviewer’s saying that the author tipped the scales by using Salinger himself as a character. Legally speaking, is it unacceptable to use Salinger as a fictitious character?

    A while ago I read a novel which used Truman Capote and Harper Lee as characters, and I can’t imagine Harper Lee sanctioning such a thing.

  2. Hi Patti!

    To answer your question, according to the legal precedent, the only object of the parody that “counts” for the purpose of determining whether the use is fair is the WORK, not the owner/creator of it.

    I’m making an educated guess on your Capote/Lee reference, but it could simply be that using Capote and Lee as subjects in a novel is not a copyright issue but a privacy/use of name issue – wholly different, and a much more difficult thing when the subject is a famous person.

    Thanks for stopping by.

  3. 3 Phillipa

    hmmm….my first reaction to reading this is a sense of relief I never studied law.

    Colting had a fairly boring idea, did a bad job of it and pissed the original author off – who by the sounds of it had every right to be annoyed. Salinger’s rights to privacy and to ‘preserving the sanctity of his creation’ were threatened by a dope who’s lasting legacy will be the legal argument not his dumb book.

  4. 4 Phillipa

    BTW my cranky comments are no reflection on your clear explanation of the issues.

  5. Hiya crank,

    Yes, it is rather dull reading, isn’t it? I guess it’s an acquired taste.

    Like brussel sprouts.


  1. 1 Right of publicity and artistic free speech « Pete Morin

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