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Salinger Takes Another Round

Prequel:  A Sequel in the Rye

J.D. Salinger has persuaded a district court judge to elevate a temporary restraining order to a preliminary injunction in his effort to prevent American audiences from reading 60 Years Later: Coming Through the Rye, which uses an aged Holden Caulfield in a narrative sequel to – or parody of — the iconic original.

I haven’t read the full opinion yet, but the passages excerpted by the New York Times strike me as not only wrong but bizarre.  If I’m interpreting the opinion correctly, the judge ruled that the defendant’s use of the Caulfield character could not be excused as “parody” under copyright’s fair use doctrine because Catcher in the Rye is a parody of itself.  The argument seems to go something like this:  Salinger himself has occupied the field of parodies of Catcher in the Rye; therefore, no further parody is permitted.  (I’m no literary critic, but the view that Salinger was being straight and “parodic” simultaneously is a view of Catcher in the Rye that’s news to me.)  The opinion says this, according to the Times:

In fact, it can be argued that the contrast between Holden’s authentic but critical and rebellious nature and his tendency toward depressive alienation is one of the key themes of Catcher. That many readers and critics have apparently idolized Caulfield for the former, despite — or perhaps because of — the latter, does not change the fact that those elements were already apparent in Catcher.

It is hardly parodic to repeat that same exercise in contrast, just because society and the characters have aged.

This case has a long way to go before a final result and opinion will be rendered, but for the moment, and if this passage is representative, then it seems clear to me that the district judge has badly misinterpreted and misapplied the law.  If fair use permits producing a parody of a copyrighted work (and the Supreme Court says that it does), then the original copyright owner cannot preempt all parodies by parodying his own work in the original work itself.  If Catcher in the Rye is a parody of itself, then the legal question is whether fair use permits a parody of the parody.  As a matter of law, the answer has to be yes; Salinger has no legal right to prevent people from mocking him, or mocking the mockery that the judge says is Holden Caulfield.  And is that what Colting, the author of 60 Years Later, is doing?  Mocking the mockery?  So it seems to me. 

There is one case that seems to hold that mocking the mockery isn’t permitted — the Second Circuit’s Seinfeld Aptitude Test case, which can be reduced to the proposition that a book critiquing a TV show for its lack of content is infringing if the TV show is purposely devoid of content.  But the Second Circuit has backed away from a broad view of that opinion, and it has been roundly criticized by the Seventh Circuit.  I think that Holden Caulfield has more trouble ahead.  At least I hope he does.

Updated:  What she said, especially (agreeing with me) regarding what appears to be an error of law regarding the scope of fair use.  It is interesting to parse the two works (Catcher, and 60 Years Later) in their respective literary terms, but in the context of a fair use argument, I think that too much literary analysis hurts rather than helps the defendant. Pam Samuelson is the latest to argue, correctly I think, that fair use is best viewed in more categorical terms. Is 60 Years Later reasonably viewed as a critique of Catcher in the Rye, whatever its merits as criticism (or as literature)?  My answer is “sure,” based on what I’ve read about the work, even if many people would argue that the critique is simplistic, or foolish, or badly executed in some other way.

Updated again:  Here is a link to the full opinion, which I’ve now read.  The full text changes some of the flavor of my points above, but not the conclusion.  The parody/satire distinction is badly over-determined, in the opinion’s framing (so, footnote 3 may be factually accurate but legally irrelevant), either because the court read Campbell to limit the meaning of “tranformative use” to parody alone, or because the court read the discussion of parody in Campbell in a numbingly narrow way, or both.  (I mean “numbingly” in a nearly literal sense.)  

I’ll stipulate that scholars have noted before that Catcher in the Rye includes “internal” criticism of Holden Caulfield, and I’ll stipulate that 60 Years Later repeats many of the themes of that criticism.  Has 60 Years Later repeated that “internal” criticism verbatim or nearly so, thus appropriating “more than is needed” to make a legitimate critical point about the original?  The court says “yes” but rests its conclusion not on excessive copying of clearly copyrighted expression but instead on an amalgam of “similar and sometimes nearly identical supporting characters, settings, tone, and plot devices to create a narrative that largely mirrors that of Salinger” (p. 26).  In total, my conclusion in unchanged.  The court has assigned Salinger an exclusive right in criticism of Holden Caulfield, based on Salinger’s own criticism of Holden Caulfield; the objection is that 60 Years Later criticizes Holden Caulfield in the same way that Holden Caulfield had been criticized by his creator, that is, in much (but hardly entirely) the same context.   Because of the court’s crabbed reading of Campbell, its analysis in couched needlessly in the “parody” framework that the Supreme Court discussed there.  But now I’m more persuaded than ever not only that the opinion is wrong on fair use grounds, I’m also starting to suspect that it could have been argued, and decided in favor of the defendant, on idea/expression grounds.

8 thoughts on “Salinger Takes Another Round”

  1. Hey, thanks! I like the way you’ve put it: Salinger can’t illegitimize parody by making his characters mockable or dislikable from the outset. Now, there is a question about whether the “bad” readers who didn’t understand Holden’s immaturity as a negative would understand the California book as a critique, or just as the further adventures of their favorite–I think that’s a difficult question, but it can’t be answered by the judge saying that Holden’s flaws were already apparent in the original.

  2. I think what this does, more than anything else, is point out that the copyright-law-invented-by-lawyers distinction between “satire” and “parody” is untenable. Leaving aside that it very nearly inverts the two terms as they would be used by literary scholars, it neglects one critical means of parody: Radical change of context… which was an important element of the 2Live Crew version of “Pretty Woman” that was found to be “protected parody” in 2Live Crew.

    There is a long, long tradition of radical change of context operating within the (legal definition of) parody in political discourse; in particular, consider the political context behind “Dover Beach” b/w “The Dover Bitch”, and a great many other works of Augustan England. I think the judge missed the point here, but that she was virtually bound to miss the point by the bad legal doctrine confining her.

    All of that said, treating A Catcher in the Rye as self-parodying is hardly a new interpretation, and more than defensible; there was a panel at a regional MLA meeting in the mid-1980s on “Self-Parody in Midcentury American Fiction” (or, at least, that’s how I recall it), including a number of works from the “civilization ends at the Hudson” school. Professor Madison’s analysis as that somehow occupying the field is probably correct, and quite disturbing… and by itself demonstrates that the parody/satire distinction is untenable.

  3. I think you are overstating what the judge is saying and creating a straw man to knock down. The judge is not saying that Salinger can preempt ALL PARODY of Catcher, just that when another book criticizes Caulfield in the same way that the original does, that’s NOT parody, its just rehashing and copying.

  4. Mike, I agree with cooder’s basic point, although I don’t think your criticism is based on a straw man. Rather, my best interpretation of the quoted passage is a bit different than yours. (Does anyone have the full opinion?) I read it as saying that where an original character balances an “authentic but critical and rebellious nature” with a “tendency toward depressive alienation,” giving the character those same traits in a DW doesn’t *by itself* make the work a parody. I don’t think there’s anything incorrect about that statement, if that’s what it’s saying. (I should note here I haven’t read *either* work; the facts may mess up a good theory.)

    Put another way, if I write “Princess Bride 2,” about the further adventures of Buttercup, Wesley, et al., the mere fact that I make it a funny lampoon of romantic adventures (i.e., just like the original) isn’t going to save me, right?

  5. Oops, I see that Rebecca’s post has a link to the full opinion. Based on a quick look, I don’t see anything that contradicts my interpretation. BTW, take a look at footnote 3.

  6. Bruce, my answer to the Princess Bride question is: Maybe it should, in fact, save you. Do the producers of the film (or does William Goldman, who wrote the book) have an exclusive right in “funny lampoon of dashing hero and damsel in distress endangered by villanous medieval lord, in which Westley and Buttercup, etc. are the names of the lead characters”? If my version is a “substantially similar” funny lampoon, then you’re out of luck. But is it possible to make a lampoon of straight hero/damsel/villain stories that uses these characters and that isn’t “substantially similar”? I think that it may be. And it is also possible (and more clearly permitted) to make a lampoon of the lampoon, again using the original premise and characters. Do we need to shoehorn that last example into a “protected parody” category in order to find it noninfringing? Personally, I hope not; I think that it should be enough to conclude that an author can’t preempt arguments that his characters are pompous a**holes by arguing himself that his characters are pompous a**holes.

    Here’s a real world example: If you go back through the first Airplane! movie and map it onto the first couple of Airport movies, as well as an older film called Zero Hour, (a) you’ll see more than a little self-awareness of how over-the-top serious the originals were; (b) Airplane! is copying a great deal of original (copyrighted) detail; and (c) as this great explanation details, it’s neither parody nor satire. If the producers of the original films had sued Abrahams, Zucker and Zucker for copyright infringement, I like to imagine that the defendants would have won the case, going away.

  7. Mike, I think you’re fighting my hypothetical a little, at least in your second sentence. My hypo isn’t about some romantic comedy in which the lead characters just happen to be named Westley and Buttercup — it’s about a sequel in which the lead characters *are* Westley and Buttercup, and the first movie provides the back story. I think that’s the analogous situation to Coming Through the Rye, unless there’s facts I’ve missed. The promotional materials cited in footnote 3 seem to make clear that the publisher and the author seem to have seen this as a sequel to Catcher in the Rye, not just some novel in which the lead character just happens to be named “Holden Caulfield.” I’m now imagining a humorous novel about a person who is named “Holden Caulfield,” and keeps getting confused for the fictional one, to his persistent irritation, but I take it that’s not this novel. That might be the sort of situation you have in mind as a subsequent work that would pass muster–whether or not we call it parody. But I’m having trouble imagining a “Princess Bride 2,” with the same characters, that does the same thing (make fun of romantic fantasy/adventure stories) and nothing else, but nevertheless is fair use.

    I was amazed to find out about Zero Hour a couple of years ago, and it raises all sorts of questions. One interesting question for modern copyright doctrine is whether something can be a parody when the audience is not likely to be familiar with the original. (A question I think is raised in the Obama Hope poster case, actually.) In Airplane’s case, I think the answer is yes, because Zero Hour was pretty formulaic; Airplane! works as a parody of disaster movie conventions even if you’ve never seen Zero Hour. I suppose the copyright owner could try to argue that more of Zero Hour was taken than necessary to accomplish this goal, but after Blanch v. Koons that argument has tougher sledding.

  8. I wasn’t trying to fight the hypothetical, but I can see how you would conclude that I was. I was imagining not Princess Bride 2, but use of “the” Westley and Buttercup — with changes. Not having read the imaginary PB-whatever or read the actual 60 Years After, we’re both at a serious disadvantage. In both cases, I think that the question comes down to “same” or “different.” Does Goldman control all possible sequels to PB? (I’ll assume that Goldman owns the rights to bth film and book, though in fact he may not.) My answer: No. By calling any “PB 2” a sequel, does the question necessarily answer itself in Goldman’s favor? My answer: No. There are uses of Westley and Buttercup in settings that resemble that of the original PB, and that include elements of parody/satire/spoof, that don’t infringe.

    Suppose that Hamlet were still in copyright, and suppose that Stoppard’s R&G Are Dead used much, much more of the Hamlet character than it actually did — while still fleshing out the plot from an absurdist point of view. Perhaps Stoppard is arguing that R&G’s outward bafflement mirrors Hamlet’s inner bafflement. Is Stoppard infringing? Or is R&G fair use?

    I don’t put a lot of weight on the marketing materials. In The Wind Done Gone litigation, my read of the case is that the “parody” argument got dressed up substantially for purposes of the lawsuit. But you’re right that there is tension between a view of fair use that puts pressure on what the defendant *thought* s/he was doing, and a view that puts pressure on what the audience understands is going on.

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