Back in December, we were disappointed to find out that the author of an “unauthorized sequel” to Catcher in the Rye had settled the lawsuit brought by the estate of JD Salinger, such that the book was permanently banned in the US. It seemed like a serious blow to basic First Amendment freedoms, to have the US banning books that have significant unique expression. However, drew points us to some more details about the settlement which seem really troubling from a free speech standpoint. The book is banned in the US, but not elsewhere, though the author, Colting, has to change the title. But where it gets ridiculous is the following conditions:
Under the terms of the deal, Colting is forbidden from dedicating the book to Salinger.
It also prohibits him or any publisher of the book from referring to The Catcher in the Rye or Salinger.
They are also prevented from using the copyright claim or Salinger’s so-called “ban” to promote the work.
Perhaps that last one is kind of understandable, but what’s with banning him from dedicating the book to whomever he wants? How is that possibly a copyright issue?
You may remember that last year, before he died, JD Salinger sued the author of an unofficial “sequel” to The Catcher in the Rye, called Coming Through the Rye, which had already been published overseas, but was slated for publication in the US. Pretty much everyone agrees that this unofficial sequel isn’t particularly good, and it likely would have quickly faded into obscurity if Salinger hadn’t brought the lawsuit. Instead, however, a court banned the publication of the book, claiming it was copyright infringement.
This is massively troubling if you believe in the First Amendment. Just think about it for a second: this is a book that was published around the world, but is banned in the US — the supposed bastion of freedom of speech and expression.
The problem is that, despite the fact that copyright is supposed to recognize the difference between the idea and the expression (and only protect the specific expression), lately the courts have been blurring that distinction massively. If you honestly believe that copyright only protects the expression — as the courts have said — then someone creating a totally different expression should not… no, cannot be barred. But, the reality is that many people — including some judges — don’t seem to recognize the difference between an idea and an expression, and what copyright is supposed to cover.
Anyway, Esahc points us to the news that the lawsuit has been sent back to the district court by the appeals court, to determine whether or not the publication of the unauthorized sequel would cause any “harm” to the original publication. However, the reasoning here is a bit surprising. The court did not find any problems with the copyright infringement ruling — and, in fact, claimed that it thought Salinger (and his estate) would likely prevail on that point if the case was appealed.
Instead, the Appeals Court simply questioned whether or not the injunction was the proper response to the infringement, and told the lower court to apply the rules the Supreme Court set out in the MercExchange ruling four years ago. This is a bit surprising, since MercExchange focused on whether or not injunctions were the proper response in patent cases, not necessarily copyright — but it does appear that various courts have been trying to apply MercExchange to other types of cases. As such, the test that the court needs to decide is whether or not Salinger’s estate would suffer “irreparable harm,” if the publication of the unauthorized sequel went forward. That might be a very difficult standard to live up to, as I can’t see any harm at all caused by the sequel (in fact, I would imagine the opposite would occur, in that it would drive more interest in the older book).
So what might that mean? If the MercExchange patent rulings are any indication, if the courts find that the unauthorized sequel did infringe on copyrights, it could require the author and his publisher to pay a set fee to the Salinger estate, and still allow the publication — creating a de facto compulsory license. Actually, the book No Law, has argued that just such a result would actually bring copyright law much more in line with the First Amendment — allowing people to be free to express themselves, but requiring they pay up if they infringe. However, it would represent a pretty major shift in copyright law. You can read the full decision below — and here’s a press release from the publisher, hyping up the ruling much more than it deserves. The Salinger estate will almost certainly push for the injunction to be put back in place, and we’ll have to see what the court decides, before we know if this book ever gets published in the US. But just the fact that it’s saying the MercExchange rules should be used for copyright infringements is a big, big deal.
Last month we wrote about how a district court banned the publication of a so-called “sequel” (written by another author) to JD Salinger’s Catcher in the Rye. I had a lot of trouble with this ruling, which seemed to be a complete assault on the basics of free speech and a total misreading of copyright law. The book itself is not a copy, but something entirely new. Whether or not it’s any good (and some of the reviews say it’s not), it is a new creative work — the exact type of thing that copyright was supposed to encourage. It’s good to see a lot of other folks are quite concerned about this ruling as well, and the Fair Use Project at Stanford has teamed up with some other universities to file an amicus brief on behalf of the American Library Association and some other library associations, who are reasonably concerned about the free speech implications of banning the publication of a book such as this one.
Copyright system defenders often trot out the commonly accepted wisdom that copyright does not protect “ideas” and that there’s an important “idea/expression” dichotomy, where it’s only the specific expression that’s protected, not the ideas. However, the reality is that both individuals and courts seem to have a pretty difficult time distinguishing between the two, and always have. While perhaps there’s some platonic ideal where it’s easy to tell the difference between an idea and the expression of that idea, it’s much harder in practice. Recent studies have shown how notoriously difficult this distinction is in practice, leading to serious questions about how copyright violates the First Amendment.
The latest example of this is the ruling banning the publication of the “modern” sequel to The Catcher in the Rye. If there really were a distinction between the idea and the expression, then a sequel would never be seen as infringing, unless it used significant text directly from the original. Yet, in this case, the ban on publication is making some wonder where that mythical idea/expression dichotomy really exists:
First, it exposes the lie that is perpetuated in the legal community that copyright laws don’t protect “ideas”, but rather only the “concrete expression” of ideas. In practicality, this statement is pure nonsense as evidenced by the fact that a copyrighted work seals in monopoly protections of “characters” and “derivative works” – even if such derivative works don’t include any actual “copying” of cloned material from the underlying work.
For instance, if I feel that I have a far better script or storyline that utilizes the character of James Bond, but without utilizing any previous cloned image from a Bond film and without copying previously used dialogue beyond a minimal instance of “My name is Bond…James Bond.” or “Shaken…not stirred.”, I still would not be able to create it, because Ian Flemming’s estate and/or Sony Pictures, etc. has a monopoly over the IDEA of James Bond.
I would argue that by protecting “derivative” works, copyright effectively asserts control over ideas – except for those envisioned at the most abstract levels.
I’m sure we’ll get angry comments from some of the copyright defenders who are always quick to chide, but I’m curious how they can use the so-called idea/expression dichotomy as a defense against a First Amendment violation, when that dichotomy doesn’t really seem to exist. Copyright system defenders, for years, have relied on the whole “idea/expression” split to explain away how copyright law can be compatible with the First Amendment’s insistence that “no law” may be passed that inhibits freedom of speech. If you realize that said split doesn’t really exist (or, at the very least, is not enforced by the courts), you have a big, big constitutional problem.
Last month, we wrote about a lawsuit from JD Salinger over an attempt to publish a “sequel” to Salinger’s famous Catcher in the Rye written by Fredrik Colting under the pseudonym JD California. In a similar case, concerning a “parallel world” for Gone With the Wind, after an initial banning, the book was eventually allowed to be published. You might think that the district court would look at this and recognize that it goes against pretty much all common sense to ban this book… but you’d be wrong. After an initial injunction, the judge has now banned publication of the book.
Yes, you read that right. A US court has banned the publication of a book, even though the creative expression in the book is unique, and it merely uses characters from another book (which it doesn’t even name the same). This is a sickening result for anyone who believes in the First Amendment, the true purpose of copyright law and basic creativity. It’s difficult to see any reasonable justification for this ruling. Much of the ruling goes through the four factors of fair use, focusing a lot on why the new work is not a parody (which is why the judge says it’s different than the Gone With the Wind/Wind Done Gone situation). This misses the larger point: the work is entirely new. It’s not directly copying any actual expression. The real problem here is the idea that only “parody” can be considered fair use in these situations. There’s simply no reasonable logic to support that.
The rest of the discussion on the four factors fair use test is rather troubling. Most specifically, the judge’s analysis of the third prong, concerning “the amount of the copyrighted work” being used seems to go to great lengths to explain how the new book uses a great deal from the old book, but bases this on similarities between the way the character acts, not any actual copying of expression (other than the odd word or phrase, which would certainly seem to be minimal actual copying). Similarity (on purpose) is not copying. Stunningly, the judge even points out that the stories have similar arcs (which isn’t surprising), but to claim that because of a similar story arc there’s infringement is incredibly troubling for pretty much any writer. After all, people write stories with similar arcs all the time.
Finally, and perhaps most disturbing of all, is her finding on the fourth prong, concerning the impact on the market for the copyrighted work, she actually finds that this weighs against fair use. Again, the logic simply does not add up. The judge admits that it probably would not negatively impact the actual demand for Catcher in the Rye, she actually ignores the fact that the opposite would likely occur. If anything, it will drive more people to go out and buy copies of the original to read (or, more likely in many cases to re-read) to go along with this new book. The judge’s reasoning is that this book would harm the market for an actual sequel, but again, that’s difficult to square with reality. If JD Salinger announced he was writing a sequel… that would make tremendous news, and it would be quite clear that people would rush to get the “real” sequel. Even if he were to license it (which appears to be the judge’s main concern) to someone else to write (which seems insanely unlikely given Salinger’s actions to date), people would quickly learn of the “authorized” vs. “unauthorized” versions. It’s difficult to see how it would harm the market at all.
This is a very troubling ruling that seems to go against the very basics of copyright law in many, many ways. Hopefully, the ruling does not stand for very long.
Eric M writes in to let us know that JD Salinger is suing the author and publisher of a new book that claims to be the sequel to Salinger’s famous The Catcher in the Rye. Salinger is claiming that the book infringes on his copyright — which may be a big challenge. Now this is an area of copyright law where a lot of lawyers disagree, but in general an unauthorized sequel doesn’t necessarily infringe copyright. Copyright covers the specific expression, not the idea — and since a “fan” sequel isn’t likely to decrease interest in the original (in fact the opposite is likely to be true), there’s unlikely to be a finding of copyright infringement. Of course, the specific details may matter and cases have gone in all different directions on this. There is, for example, the famous lawsuit about the book The Wind Done Gone, which was a retelling of Gone With The Wind from a different perspective. A lower court issued an injunction to block the sale of a book, but eventually it was allowed. There are certainly other potential claims that Salinger could make — but the article specifically says it’s a copyright issue, which seems like a tough sell.