Taking the catcher out of the rye

On July first of last year, the Honorable Deborah A. Batts, United States District Judge for the Southern District of New York (hotbed of intellectual property law jurisprudence), granted a preliminary injunction to author J.D. Salinger (and his literary trust) precluding another writer (and his putative publishers and distributors) from publishing and distributing a book that purported to be a sequel-of-sorts to Salinger’s classic The Catcher in the Rye.

[UPDATE:  The Second Circuit bounces Judge Batts. Find the opinion here.  But do read on–and see Matthew’s comment, and others, below for more updates …  And see here for my take on these issues and this case.  – RDC]

To grant Salinger’s motion, Judge Batts had to find: first, that both The Catcher in the Rye, the story, and Holden Caulfield, the story’s fictional protagonist/narrator (or, as I like to say, “protagonarrator,” or “narratagonist”), were protected by copyright law; and, second, that the newcomer’s work was not a parody of these two such that the “fair use” doctrine would permit publication of the new work notwithstanding the exclusive rights given to Salinger by copyright law. Judge Batts’s decision runs to 37 pages. Her Honor’s finding that Holden Caulfield the character is protected by copyright law, separately from The Catcher in the Rye, is stated at the top of page 2, in the introduction to the decision: “[T]he character of Holden Caulfield is sufficiently delineated so that a claim for infringement will lie.” Judge Batts did not need to wrestle long, or at all, with that question.

On January 27 of this year, Jerome David Salinger passed away at age 91. He will not see the outcome of the appeal of Judge Batts’s decision noticed on July 2, 2009.

In 1997, I published (in a journal that soon went defunct) an article exploring the motivations for treating fictional characters (apart from the works in which they appear) as “works” themselves entitled to protection under copyright law and arguing that if we are “extending” copyright protections to characters (which are plainly not typical “works” as contemplated by the law) because readers feel some emotional attachment to characters and want to be assured that the characters we get are the characters we have come to expect—and thus are protecting “consumers” (readers) primarily and producers (authors) only secondarily—then we are using copyright law improperly, making it more like trademark law (which is intended to protect consumers in the first place).

[stextbox id=”info”]Lawyer and writer–or is it writer and lawyer?–Matthew David Brozik is the co-author of The Government Manual for New Superheroes, The Government Manual for New Wizards, and The Government Manual for New Pirates. Some of Matthew’s short fiction has appeared, appears now, or will appear in/at McSweeney’s Internet Tendency… Popcorn Fiction … the Sycamore Review … Zahir … RE:AL… Awkward … the American Drivel Review… the Armchair Aesthete … Spout Magazine … Sidewalks … the Palo Alto Review…Barbaric Yawp … Cosmopsis Quarterly… The Binnacle … The Stray Branch … and Illya’s Honey, which nominated “Clues” for a Pushcart Prize. He is a formidable author of legal chin strokers as well.  Your regular blogger discussed this topic, in far less depth, here.[/stextbox]

That said, being honest with myself, I cannot object to protecting fictional characters that are sufficiently delineated, even if such protection is apparently not contemplated by the black letters of the law. The same goal stated in the Constitution—“To promote the Progress of Science and useful Arts”—is furthered by protecting fictional characters that, notwithstanding not being typical works themselves, otherwise meet the criteria of works. Why shouldn’t Holden Caulfield be protected just as is The Catcher in the Rye?

So the issue of protecting fictional characters is not an issue at all, notwithstanding my argument years ago that we are protecting characters for improper and/or insufficient reasons. To my amusement, in reviewing my paper I saw that one example I gave of a character whose continuing adventures one (other than Salinger) might be tempted to pen is Holden Caulfield. Imagine that. Another example I gave is P.G. Wodehouse’s Bertie Wooster and Jeeves. A little less amusing, as recently I started writing a collection of short stories featuring Bertie Wooster and Jeeves… which project prompted me to get back up to speed on the state of copyright law vis-à-vis fictional characters in a hurry. And that’s what brought me to this chin-stroker:

What will happen when a sufficiently delineated fictional character is protected for longer than the work in which he or she originally appears? That is, will a continuing copyright in a character prevent a work featuring that character from entering the public domain when the time for such entry arrives?

Imagine a work (it could even be The Catcher in the Rye, first published in 1951, copyright renewed in 1979) whose copyright term will expire sooner than (the current term for new works of) 70 years after the death of its author (because it was published before 1978, and the rules for such works are different). By my calculation, the copyright in The Catcher in the Rye will expire in 2046 (barring any retroactive mucking about with terms by Congress, which since Eldred v. Reno has constitutional carte blanche to extend copyright terms ad infinitum). Even if my math (or reading) is wrong, as long as the end year is earlier than 2080, this example still works.

Now imagine that the work features a fictional character who also warrants protection. (Such entitlement is almost always going to be found retrospectively. That is, it might not be clear when the moment arrives that a character achieves sufficient delineation, but it will be clear looking backward from such time as, perhaps, some second author wants to write about the character. “Sorry,” we’ll say. “He’s sufficiently delineated. We can’t say since when, but it doesn’t matter. It’s enough that he is now, when the question is ripe.”)

Since the Copyright Act does not provide specifically for terms for fictional characters (for the obvious reason). . . and because it is unlikely that we could ever put our finger, at the time, on the moment that a character who first appeared before 1978 reached sufficient delineation (setting the beginning of copyright term, which will set the end), the simplest thing to do is assume that protection will last, even for characters who made only one appearance, in a work published before 1978, for 70 years past the death of the author. What else can we do?  So the copyright in Holden Caulfield will last until January 27, 2080. (And not, to the contrary, in 2046. If this assumption troubles you, imagine instead a character who doesn’t become sufficiently delineated in his or her first appearance, but rather over the course of several, such that the character and the first work are more conceptually separable.)

When the term of copyright protection in The Catcher in the Rye expires in 2044, if mankind still inhabits an unradiated Earth, the work should enter the public domain. On that day, you can be sure, if mankind is still entertained by mere words, publishers worldwide will add the title to their lists of books in print (or on screen). Everyone who can will sell an edition of The Catcher in the Rye . . . unless someone, the J.D. Salinger Literary Trust, perhaps, enforces its rights in the character Holden Caulfield to enjoin publication of The Catcher in the Rye. For how could one copy the only book to feature a character—and in which book alone the character necessarily is sufficiently delineated—without copying the character?

Now, if you can believe it, the exact opposite of this scenario has already happened: Edgar Rice Burroughs introduced Tarzan in Tarzan of the Apes, first published in 1912. (The copyright to the story was registered in the name of the story’s publishers and assigned to Burroughs the following year.) Tarzan was well received and later appeared in many other stories written by Burroughs. The original story eventually passed into the public domain, while the latter stories remained protected. The right to copy Tarzan of the Apes encompassed an immediate right to “copy” (use, really) Tarzan, even though he appeared in the later works, according to none other than the United States Court of Appeals for the Second Circuit (in Burroughs v. Metro-Goldwyn-Mayer, Inc., 683 F.2d 610 (1981), even though the court claimed to express no opinion on whether the character was covered by copyright). To the extent that Tarzan was delineated in the initial work in which he appeared, he passed into the public domain along with that work, receiving no continuing protection either independently or from the copyright in the subsequent Burroughs works.

This should not have been. If, hypothetically, Tarzan had never reappeared in any work following the first (like Holden Caulfield), then it might be more justifiable to allow the character to pass into the public domain—even if, as is less likely, in that one appearance he had achieved sufficient delineation to merit protection as a character. (I don’t support this position. The issue is sufficiency of delineation, not frequency of reappearance.) Given the actual circumstance, though—that Tarzan had reappeared and been fleshed out, as it were, in later stories, he should have been protected as a character independent of the stories. That is, even if every Tarzan story were to pass into the public domain, the character Tarzan should not automatically pass with them.

Am I talking out of both sides of my mouth when I suggest that a character should not automatically pass into the public domain even if and when all of the works in which he or she appears have done so… but the continuing copyright in a character should not prevent publication of the works in which he or she appears if those works have entered the public domain? Maybe the solution is just that simple, though. The larger question, of course, is What about derivative works? But that’s another post.