When something old is new again

Courts have typically decided questions of fair use by examining whether new works have significantly altered or expanded upon existing works to add an original meaning or message. Much of the debate in the courtroom involved the similarities and differences. – Colin Moynihan, New York Times

60 Years Later: Coming Through the Rye is a novel already published in Europe. It’s writer is now attempting to bring it to the United States. However, the author from which this work derives (Catcher in the Rye), has never wavered from keeping others from trying to interpret, or re-interpret, his work through film or other media. It was no surprise then that a lawsuit was filed, contending that the new book infringed on Salinger’s copyright, citing that the work is derivative.

Fredrik Colting (writing under the name of J.D. California), claims his work is a parody, a  “fictional examination of the relationship between J.D. Salinger and his most famous character.” He would do this of course, as criticisms and some parodies of literary work is considered fair use and allowed.

Before we go much farther, I think some definitions are in order. Just in case you are unfamiliar with the terms “derivative”, “fair use”, and “Transformation”.

Derivative work:
A work based upon one or more preexisting work. This new work carries within it the potential to be perceived as copyright infringement if it contains a substantial amount of protected expression taken from the earlier work.

Fair use provision in copyright law:
The fair use of a copyrighted work, including such use by reproduction in copies or [recordings] or by any other means specified, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

Transformation (this is the important one folks):
In United States copyright law, transformation is a possible justification that use of a copyrighted work may qualify as fair use, i.e., that a certain use of a work does not infringe its holder’s copyright due to the public interest in the usage. Transformation is an important issue in deciding whether a use meets the first factor of the fair-use test, and is generally critical for determining whether a use is in fact fair, although no one factor is dispositive.

Unfortunately for Colting, his novel had originally been touted as a sequel. In fact, it’s reported that the the first jacket cover stated his book was a “… a marvelous sequel to one of our most beloved classics”. Back pedaling to claim his work as literary commentary, and protected by fair use, cost him credibility with the judge. His response?

I am pretty blown away by the judge’s decision…Call me an ignorant Swede, but the last thing I thought possible in the U.S. was that you banned books. – Fredrik Colting, author of 60 Years Later: Coming Through The Rye

Ouch. Yep. He said the “B” word. Publication of 60 Years Later has not been banned completely however, and only in the United States. As much as many of us bridle at the words “banned book,” let’s look at why many are challenged today: religious reasons, sexual content, offensive language are just a few of the reasons parents and others give to justify why they want a book banned. This is not the case here, nor is it the issue.

Imitation is the sincerest form of flattery-except in literature

Infringement is the accusation and why its publication was enjoined.

Salinger created a story and a character that has become part of the western canon. Another writer, regardless of his motives, has taken this story, its characters, their tone and vernacular, and wrote a story that does not have enough original content to be perceived as anything but a spin-off of the original.

Does he have the right to do this? Can a fictional work of this nature be considered literary criticism? Enough so that it falls under fair use?

Perhaps the author’s unique methodology, this writing a commentary as a fictional account of an author interacting with his characters, is something much too different to be understood properly. According to Colting’s lawyers, “the new novel…did not violate copyright laws because it amounted to a critical parody that had the effect of transforming the original work.”

The bold and italics are my own. “Amounted to”? “Had the effect of”?

In my thinking, this needs to be clear. Crystal clear. It is, or is not, a form of literary criticism or parody. Readers should not have to infer the meaning or intention of Colting’s work. In addition, what is there about Catcher in the Rye or the character of Holden Caulfiled that is not made explicit to the reader?

And it is this point of contention that the Judge cites in her rejection:

To the extent Defendants contend that 60 Years and the character of Mr. C direct parodic comment or criticism at Catcher or Holden Caulfield…the Court finds such contentions to be post-hoc rationalizations employed through vague generalizations about the alleged naivety of the original, rather than reasonably perceivable parody.

She is stating, and I agree, that there is not enough ambiguity in Salinger’s book or character that Colting can claim his work is transformative. Colting  failed in his attempt to “transform” the original work sufficiently to be covered under fair use. As she states, “It is hardly parodic to repeat that same exercise in contrast, just because society and the characters have aged.”

All is fair in love and war but not copyright law

I’ve read several rebuttals to the judges decision. However, I find their logic does not convince me thoroughly. From everything I can glean about 60 Years Later, Colting has not created a work sufficiently parodic or unique that it can be perceived as a work of literary criticism, or in any way fall under fair use.

Some would argue, and have, that U.S. copyright law needs to be re-worked, if not killed outright. I don’t agree with remvoing it completely – just in its current form. I agree it needa re-thinking, making it more applicable to the digital age in which we live.

Until then, how much, and for how long, should an artist’s work be protected? Should this differ based on the media? (i.e. one set of standards for film versus another for literature)

Fair use is a way for those who have no intention of making a profit from another’s efforts which have resulted in a copyrighted work. It allows them to disseminate the work for criticism, quote for educational use or review. In my experience, not much needs to be taken from the original work in order to take advantage of this policy and avoid plagiarism or infringement.

60 Years Later isn’t being banned as much as it is being put to a test against what is fair . . . fair use that is. Until proven otherwise, or until the law is changed, this is a derivative work which infringes upon a copyright.

Right or wrong; fair or unfair, this is the law.

Sources used and quoted in the above article:
• 60 Years Later Blocked: Judge Says No To Salinger Spinoff by Larry Neumeister
• Holden Caulfield Hangs on to His Youth by Colin Moynihan
• US Judge Bans ‘Rye’ Book Sequel by BBC News
• Ruling for Salinger, Judge Bans ‘Rye’ Sequel by Sewell Chan
• Definitions courtesy of Wikipedia®