Who owns culture? J D Salinger, J K Rowling and the line between derivation and infringement

Paul Raven @ 07-08-2009

The bookworms among you may have caught the news last month about J D Salinger’s successful lawsuit against a writer who planned to publish an unofficial sequel to the cult classic The Catcher In The Rye. It’s a complex situation; while I’ve a certain sympathy with Salinger not wanting people messing with his creations, the ruling actually flies in the face of the US Constitution’s First Amendment, as TechDirt pointed out:

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 […] 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.

Indeed – I raised a similar point in the wake of the latest plagiarism lawsuit against J K Rowling, and now it seems that the Fair Use Project and the American Library Association have filed an amicus brief expressing their concerns about the precedent being set. It’s interesting to compare the two cases, because that makes it clear that the law tends to side with the more successful or high-profile creator: Rowling’s lawyers have successfully (and quite rightfully) batted away claims from other writers that general story or character similarities make the Harry Potter series infringing works, but Salinger has prevented publication of a story that he feels infringes on his prior creations. Salinger’s case has a unique flaw (at least to my eyes) in that he has steadfastly refused to publish anything at all for quite some time. If he has no intent to write his own sequels to Catcher, how is the other writer robbing him by doing so?

Of course, there’s always the issue that cash-in works designed to exploit an established fan-base tend to be crap (and apparently reviews of the putative Catcher sequel suggest that it wasn’t much cop), but is that any reason to use the law to prevent their creation? For example, I’m pretty appalled by the travesty that Brian Herbert and Kevin J Anderson have made of Frank Herbert’s Dune universe, but I’d never suggest that they should be legally prevented from doing so.

I guess the question here is: does the publication ban showcase the law protecting Salinger’s ability to make money from his own work, or the law protecting his feelings about the work of others? Because I’m pretty sure the latter is not what the law is supposed to do, and it sets a bad precedent for any of us who aspire to make an income from our own creative output.

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10 Responses to “Who owns culture? J D Salinger, J K Rowling and the line between derivation and infringement”

  1. Ian Sales says:

    Sadly, Anderson & Herbert Jr have permission from Herbert Limited Partnership, the owners of Dune universe.

  2. Kian says:

    If simularities were something to be tried upon the JK could be sued by Lucasarts
    See the following link.
    http://www.i-am-bored.com/bored_link.cfm?link_id=19148 (A plot synopsis of Starwars with a couple words replaced)

    Ok. So on a more serious note, I honestly do not see how this could actually go through. Any avid reader can see connections between new releases and old releases, where (and I hate to use this term) ideas have been recycled from the previous works. Large amounts of peoples perceptions of elves have been based around the Tolkienesk interpretation, the Cthulhu mythos is largely based around 3rd party work and these are just a couple premises. It happens alot not because people are so much stealing ideas but rather sharing their past experiences through what they have read and using it to weave a new tale. I feel the real question that should be asked is, where is the line drawn and does this apply to any idea including small premises people have considered. Is the next step the copy write of fictional idea?

    I’m honestly quite surprised this has gone through, especially as you pointed out the original author has no plans of continuation.

  3. toktok says:

    You might want to read this: KKelly’s essay “Progression of the Inevitable”
    http://www.kk.org/thetechnium/archives/2009/08/progression_of.php

    It’s about the inevitable multiple occurences of scientific discoveries, inventions and even art.

    It considers JKRowling for example, detailing similar books that came out independently, including one about “Larry Potter, an orphaned boy wizard wearing glasses surrounded by Muggles.”

    Thats just a little eerie.

  4. Greg says:

    For that matter, Star Wars couldn’t exist, given the preexisting (and very similar nature) of Dune.

  5. Jerome Stueart says:

    I think the point is that an author has copyright over his creations. While Shakespeare’s characters might be fair game, Mr. Updike, or books done from other people’s point of view, Mr. Maguire, etc., I think the copyright still holds for characters. It’s not anyone’s right to say that Mr. Salinger did not use Holden enough–so therefore, we give his creation to someone who can use it better. If so, at what point do we cite “character abandonment” on an author? Forty years? Twenty?

    If the work, as in this case with JK and JD, are merely trying to make money off of someone’s creation–which they both were–then what merits do the derivative have WITHOUT Holden or Harry? None, is what the ruling says.

    If it were not for Harry’s name in the work–it would not sell. If it were not for the story being about Holden, it would not sell. Really, the indictment is on the derivative author–let them be creative themselves! Come up with their own characters. If the courts DIDN’T rule in favor of the original authors of those characters and works, then no author’s work is safe. Creation wouldn’t be prized, only appropriation with a better plot, perhaps, or one that turned the characters into something the new author might find amusing….

    …which is where fan fiction comes in and why it’s not (typically) salable.

    So, if the new works could stand on their own without the assistance of the pillar that the former work created, there wouldn’t be a problem to publishing them. This is why we have copyright. To protect authors, and to push others towards ingenuity and creativity, not creative laziness.

  6. Jerome Stueart says:

    On the subject of recycled plots: well, progression of plot is a science and there are pretty standard ways to move a piece of fiction forward. While Fantasy authors everywhere are indebted to Tolkien, he is indebted to Myth, and so forth. Yes, creative works build on each other, but that’s not copyright infringement. Making Tolkien’s elves into the “standard” elves in other fantasy writer’s fiction is more about marketing and recognition–since readers expect intelligent, arrogant elves nowadays–and a bit of laziness–since no one wants to completely redefine and alienate a fan base–dumb, militaristic, 21st century elves might be too hard to design, let alone market–if they’re not the point of the book.

    Star Wars might owe something to Dune, but it owes more to Joseph Campbell and myth…which is okay by me. All shirts are alike too–in their structure–but I like some better than others, and the art is still in what you make of the structure.

    No one ever said Da Vinci was derivative because he did a portrait of a woman when portraits of women were commonplace.

  7. Kian says:

    Thinking about it I agree with you.

    I’m just always curious when these kind of matters come up as to the matter of when people begin to define the difference between something progressive and something unoriginal. The line seems quite obvious when it comes to characters since there are names and back stories and its quite easy to lift, however take worlds for instance.
    Would someone writing about a a world were magic exists unbeknownst to a modern day society be considered for lack of a better word “stolen”, what if it was set in a learning institute? Is the person who publishes first the person with priority or do you have to show proof of concept. The case of The Catcher in The Rye is that in which the tale is very much character driven and so I can see where the stance would lie upon this, however I can’t help but think that this may become a slippery slope and its that upon which I am wary of.

  8. bruce says:

    I’m just always curious when these kind of matters come up as to the matter of when people begin to define the difference between something progressive and something unoriginal.

  9. Jerome Stueart says:

    I hear you, Kian. I guess plots that happen after HP with a magical school might make people pause and wonder if it’s derivative…but there’s no copyright on magical schools–and we’ve had schools for superheroes, schools for those who work with lightning, etc. School will almost always show its face in a young adult or kid’s novel somewhere–and if that book is magical…

    I’d say that authors need to be careful of even “original” magical schools post HP, but making the characters stand out makes the book memorable.

    What we love about Catcher is not that it’s set at a prep school–been there, done that (in the 60s especially)–but that it’s Holden, he’s ditching the school in favor of trying to figure out life. It’s his journey that attracts us, not the school.

    Hopefully, the journeys of characters will completely outweigh their settings, although Rowling made that school as memorable as Harry….so magical schools might have to be retired as a setting for a bit….

  10. Karen James says:

    What I suppose the author J.D Salinger was trying to do was inform many readers what he was capable of as an author. Everything that was written in Catcher in the Rye was very important to my mind,and it touched my thoughts.