[Eugene Volokh, July 9, 2009 at 6:23pm] Trackbacks
J.D. Salinger's Lawsuit Over the Sequel (?) to Catcher in the Rye:

I didn't see the decision granting a preliminary injunction to Salinger until this week, so I thought I'd blog a link. A very interesting case, and I think the opinion helps show the problems caused by the current fair use framework (though I'm not sure I know of a better one), which requires judges to become literary critics.

Related Posts (on one page):

  1. J.D. Salinger's Lawsuit Over the Sequel (?) to Catcher in the Rye:
  2. A Sequel or a Commentary on "Catcher in the Rye"?
ReaderY:
It looks like in order to be a judge these days, one has to know all the tricks.
7.9.2009 6:40pm
ReaderY:

2nd Interviewer: What did he do?

Vercotti: He used... sarcasm. He knew all the tricks, dramatic irony, metaphor, bathos, puns, parody, litotes and... satire. He was vicious.


Monty Python, "The Pirana Brothers"
7.9.2009 6:42pm
Mark N. (www):
One solution would be rolling back the implied copyright in characters. Surely nobody challenges that Mr. Salinger has a copyright on the duplication and distribution of a specific book, The Catcher in the Rye, and the fair use analysis in that case is much easier. Most judges can determine whether a quotation from the book is too lengthy to be fair use; whether a summary of the book is so extensive as to constitute effectively a paraphrase or rewording of it; and so on. But that's quite a different matter from being able to prohibit anyone else from writing new works that incorporate characters from Mr. Salinger's works, which has a gigantic gray area. It's a particularly big problem with lengthy copyright terms, since famous old works enter the general cultural consciousness to such an extent that there are a lot of references to them, and the courts are left having to figure out how much referencing is too much.
7.9.2009 6:52pm
Nunzio:
This book seems like just a sequel to Catcher in the Rye, based on the opinion.
7.9.2009 7:21pm
Kelly (mail):
One solution would be rolling back the implied copyright in characters.

Be careful. Thoughts like this make Mickey Mouse and his friends very angry.
7.9.2009 11:38pm
Justin Levine:
Professor V. -

Allow my to quote a remarkably insightful fellow with regards to the issue of preliminary injunctions and prior restraints in copyright disputes:


Copyright law, though, presents a comparatively weak case for preliminary injunctions and the concomitant suppression of speech that ultimately proves to be protected. It is thus all the more remarkable that courts have applied prior restraint doctrine in the libel, obscenity, and even national security contexts, but not to copyright law.


Care to guess who wrote that? I'm sure he'd want to comment on this aspect of the case when he gets a chance.


http://www.law.ucla.edu/volokh/copyinj.htm

Rather amazing that you will be able to purchase this book in Europe, but that it is now banned in the U.S.

The U.S. has already ruled that prior restraints are unconstitutional with regards to documents that touch on national security issues [NY Times v. U.S.], but when it comes to protecting the profits and power of (mainly) media conglomerates and aged authors who wish to ban all unauthorized derivative works that build on their creations...well that's far more serious than national security documents, now isn't it?

Absolutely unreal.
7.10.2009 12:52am
lucy99000 (mail):
I don't want to lose sight of the issue not addressed — the prevention of videotaping the DEA. If you like cheap jordan shoes and jordan 6 rings, welcome to my site
7.10.2009 4:53am
Dan Weber (www):
One solution would be rolling back the implied copyright in characters.

Be careful. Thoughts like this make Mickey Mouse and his friends very angry.
I've asked this repeatedly over the years and never gotten an answer:

If copyright fell back so that Steamboat Willie wasn't covered, wouldn't Disney still have a trade mark on Mickey Mouse? Other people could copy and sell Steamboat Willie, and they could even use Mickey Mouse in their own original works. But, they couldn't market their work as something "starring Mickey Mouse," since Disney would still own the trade mark.

I really don't think a 50-year limit on copyright would hurt Disney (or DC Comics, or Marvel Comics in a few years -- Spider-Man is almost 48!) that much.
7.10.2009 12:41pm
Randy R. (mail):
I believe there was a similar lawsuit over a sequel to Gone With the Wind, and it failed. As did the sequel.
7.10.2009 10:25pm
Justin Levine:
Randy R. -

You are mistaken.

The 11th Circuit Court of Appeal overturned a preliminary injunction against publishing the book pending trial since it was an unconstitutional prior restraint. (Why the judge in the Salinger case didn't recognize this, or why the defense didn't bring this to his attention more forcefully, is beyond me.)

However, the "Gone With the Wind" case settled before it went to a trial on the merits. Therefore, it can't be said to have "failed".
7.12.2009 4:05pm

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