I may be a minority, but I find it odd to think a literary character, rather than the work he appears in, can be copyrighted. Nonetheless, the judge hearing J.D. Salinger’s lawsuit seeking to block publication of 60 Years Later: Coming Through the Rye apparently thinks Holden Caulfield is “a portrait by words.” Funny, I might think of Catcher in the Rye as analogous to a painting, but the character himself?
Holden Caulfield is a cultural icon of adolescent alienation (or at least was at one time). Can no creative work employ him as a symbol with resonance for an entire generation without J.D. Salinger’s permission (that, by all appearances, he would never grant)?
I’ve long argued here that the law does not, and should not be read to, forbid making cultural reference to the intellectual property of another — even creatively or commercially. If it did, or it were, that would pretty much be the end of culture, after all, wouldn’t it?
We know that J. D. Salinger couldn’t care less about that. He’s got his, after all — and the link above, a little further down in the post, demonstrates just where he got it.
But hey. All morons hate it when you call them a moron.
One hopes that judges, however, do care. People always think something’s all true. But we count on judges to follow these subtle distinctions.
Hat tip to @CopyrightLaw.
UPDATE: More on copyright and creativity (hat tip to Glenn Reynolds).
Originally posted 2014-12-09 11:06:49. Republished by Blog Post Promoter
I completely agree that the law SHOULD not forbid making cultural reference to the intellectual property of another — even creatively or commercially. But your assertion here that it DOES not do so is at odds with many legal rulings.
Like the blogger you quote from, I too find it odd that a literary character can be copyrighted outside the scope of the concrete work that the character appears in – but the law clearly (and unfortunately) allows that.
If I decide to make my own movie featuring the character of James Bond – without using any concrete/cloned images from previous Bond films and no copied dialogue beyond perhaps the de minimus use of “My name is Bond…James Bond”, you don’t think I would be successfully sued by Sony and/or the Ian Felmming estate? You know full well how that would go down in a court of law.
What’s the difference between that scenario and the Catcher in the Rye controversy? I have long argued that copyright should not protect ANY derivative works as long as the derivative work does not utilize an actual cloned copy of the underlying original work. But clearly the law states otherwise. The censorship of an unauthorized Catcher in the Rye “sequel” (or however you wish to characterize it) is a logical extension of that law – not an aberration of it. After all, how do you objectively distinguish between this kind of work and any other “derivative” work.
It seems to be the only choice is to accept continued censorship of creative works that reference or build on previous works, or make radical changes to the existing scope of what copyright protects.
I am for the latter. Most IP attorneys are not – which is why I find their defense of the unauthorized derivative work of “Catcher in the Rye” to be an example of (perhaps ‘hypocrisy’ is too much of a fighting word, so I will instead say….) strange cognitive dissonance.
Ron –
I’d be curious to know if (given your comments above) you still feel the same way about the “Dick and Jane Yiddish” book which you seemed to endorse the banning of at the time in order to protect the sanctity of the original “Dick and Jane” copyright:
https://www.likelihoodofconfusion.com/?p=39
More relevant posts from the Coleman/Levine dialogue here:
https://www.likelihoodofconfusion.com/?p=878&cpage=1
http://www.calblog.com/archives/004635.html#29370
Great question, Justin! Amazing to think someone is really paying attention.
I think at this stage of history, I would argue that (a) the Dick & Jane post was, and unfortunately still is, consonant with existing law, and (b) I did say “unfortunately” there.