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.