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.

A Sequel in the Rye?

For the moment, J.D. Salinger has in hand an order prohibiting the distribution in the U.S. of 60 Years Later: Coming Through the Rye, which is either an unauthorized sequel to (i.e., derivative work, based on) and an invasion of the privacy of the author of The Catcher in the Rye, more or less akin to the Seinfeld Aptitude Test, or a work of criticism and “meta-commentary” that is more or less akin to The Wind Done Gone.

Here is the Complaint.

Here is the brief in response to the request for relief, plus declarations on questions of “is it literary criticism?” (yes) and “will it damage sales of the original?” (no).

The Wall Street Journal’s Law Blog runs an interview that, oddly, highlights the more-hyped-than-real distinction between “prohibited” satire and “permitted” parody. 

Either way the case ultimately comes out, and I hope that the Second Circuit gets a shot at reviewing the trial judge’s final order, whatever it is, the case will make great teaching material.  Not because future copyright students will scrutinize it for its bearing on parody and satire, but because perhaps better than any hypothetical a law professor could imagine, it highlights the contrast between the strongest possible “moral rights”/personality rights vision of copyright law, based first, foremost, and finally on the author’s conception and control of the creative work of authorship, and a public-regarding vision of copyright law that sees creative culture as part of the fabric of human conversation.  Few authors are as obsessed as Salinger has been with control over his creation; few uses of prior works are as transparently designed to exorcise that control (and make the original work relevant to a modern audience) as 60 Years Later seems to be. 

The Wind Done Gone was produced in the same spirit, but the examples and the two sides of the debate don’t resonate quite so well with a modern audience, especially an audience of modern law students, as a case based on Catcher in the Rye.  For one thing, Margaret Mitchell is dead, and even in life she was of multiple minds about the celebrity of her work [the link is to the recent Molly Haskell account of the making of the film adaptation].  For another, few people today have read the original GWTW novel.  Salinger-the-recluse may not be well-known to current students, but many of them have had to endure Catcher in the Rye. 

Meanwhile, I assume that the full text of 60 Years Later is available electronically — somewhere.