Salinger and the Copyright Clause

J.D. Salinger's miserly legal legacy

Jan 17th 2011, 23:07 by W.W. IOWA CITY

J.D. SALINGER'S infamous mania for privacy included a rather self-defeating litigious streak. One of the author's final public acts was to file a lawsuit enjoining the publication of a book that otherwise would have passed immediately into obscurity. That case was finally settled last week, ensuring Salinger's legacy as the preeminent enemy of open culture in American letters.

"60 Years Later: Coming through the Rye" by Frederik Colting, a previously unknown Swede writing under the pen-name "John David California", tells the metafictional tale of J.D. Salinger's desire to resurrect his most famous character so that he can kill him in print, thereby silencing the troubling voice in his head. But Mr Colting's elderly Holden Caulfield proxy—whom he calls "Mr C"—escapes his nursing home to revisit his New York haunts 60 years later, all the while eluding his creator's lethal authorial intentions.

By most accounts, the book is a bungled experiment destined to languish unread and unrecognised in the far ghettoes of the long tail. Yet apparently Salinger could not abide others playing with his words and worlds. He could not let Mr Colting's book simply fade away. In 2009 Salinger successfully won an injunction against the publication of "60 Years Later" in America. Mr Colting appealed and a panel from the Second Circuit Court of Appeals vacated the injunction and threw the case back to the District Court while acknowledging the strength of Salinger's case under the prevailing interpretation of the "fair use" provision of American copyright law. (Judge Guido Calebresi called Mr Colting's effort a "rather dismal piece of work".) Not long thereafter, Salinger passed away. Last week his estate and Mr Colting settled out of court. According to Publisher's Weekly:

Colting has agreed not to publish or otherwise distribute the book, e-book, or any other editions of "60 Years Later" in the U.S. or Canada until "The Catcher in the Rye" enters the public domain. Notably, however, Colting is free to sell the book in other international territories without fear of interference, and a source has told PW that book rights have already been sold in as many as a half-dozen territories, with the settlement documents included as proof that the Salinger Estate will not sue. In addition, the settlement agreement bars Colting from using the title “Coming through the Rye”; forbids him from dedicating the book to Salinger; and would prohibit Colting or any publisher of the book from referring to "The Catcher in the Rye", Salinger, the book being “banned” by Salinger, or from using the litigation to promote the book.

In the end, Salinger could not put the genie back in the bottle, though his faithful estate did manage to deny the genie an American visa, for what that's worth.

The action against Mr Colting was merely the last in a long string of lawsuits Salinger pressed to maintain stifling control over the use of his writings. In 1986 Salinger successfully sued to stop Ian Hamilton from including excerpts of some of his letters, which are archived in several university libraries, in the book, "In Search of J.D. Salinger: A Writing Life (1935–65)". The court declared Mr Hamilton's excerpts went beyond "fair use". In 1998 Salinger threatened to sue to stop a screening at New York's Lincoln Centre of the film "Pari", a loose adaptation of his book "Franny and Zooey" by Dariush Mehrjui, an Iranian director.

Writing of the incident in the Village Voice, Amy Taubin sensibly asked:

[W]hy would Salinger care that some obscure Iranian filmmaker had paid him homage with a meditation on his heroine, a late-'50s, New York­-bred college student who is obsessed with the concept of "praying incessantly" and whose nervous breakdown is accelerated by her dinner date's remark that Flaubert "lacked testicularity"?

Why, indeed?

One of the few interviews Salinger granted after achieving literary fame was prompted by the writer's indignation over the unauthorised publication in 1974 of a collection of short stories he had published over the years, but never intended to compile or reprint.

'Some stories, my property, have been stolen,' Mr. Salinger said. 'Someone's appropriated them. It's an illicit act. It's unfair. Suppose you had a coat you liked and somebody went into your closet and stole it.

That's how I feel.'

As a matter of justice, surely Salinger was owed some the proceeds from the sale of this volume. Naturally Salinger sued, seeking a tidy sum in damages. Yet these were works he meant never to republish, so it's doubtful the prospect of lost profits was the source of his ire. And I don't buy his defence. As Nina Paley delightfully illustrates, making copies of something is utterly unlike stealing a coat. When somebody steals your coat, you can't wear it any more. If somebody distributes copies of your stories, there's more for everyone. Try an alternative story: "Suppose you're a domineering patriarch who insists on telling his typically compliant middle-aged children to eat grits for breakfast and suddenly one day they don't. That's how I feel." The only thing Salinger really lost was his jealously guarded sense of exclusive control over everything he ever had a hand in creating.

Whether or not this kind of loss counts as a real harm, whether there is a legitimate moral entitlement to this kind of exclusive and comprehensive control of one's creative work, is one of the great questions of our age. Given the all-too-successful legal and legislative efforts of Disney, the recording industry and artists like Salinger, the prevailing model of copyright has come to appear as yet one more way in which our political economy is rigged to protect privilege. This shift in perception can be explained by a bigger shift in our creative culture. The rise of the arts of the sample, the remix and the mashup alongside the emergence of the open-source software movement has engendered a growing sense that creative work both draws from and adds to a common pool of shared culture.

This change in the mood and tools of the creative class has made Salinger's legal aggression against biographers, filmmakers and inferior writers seem less like charming New Hampshire get-off-my-lawn curmudgeonism and more like a contemptible failure of generosity. A decent man does not shoot at kids taking a shortcut across his back forty. But Salinger, again and again, lawyered up, aimed carefully, and fired.

http://www.economist.com/blogs/prospero/2011/01/copywrongs