Unsettling settlement

Two years ago I expressed my own criticism, and later rounded up a number of other views, of the case brought by J.D. Salinger against a “sequel” to The Catcher in the Rye written by Fredrik Colting.  Last year, in a guest post, Matthew David Brozik added his own thoughts on the topic — right on the eve of the Second Circuit’s stay of the lower-court order essentially barring publication of the book.

The topic came up again, in my mind, when reading this post at Volokh (via Instapundit) challenging the recent public suggestion that “without copyright there would have been no Shakespeare.”  This is a silly assertion considering that the Shakespeare we have was, in fact, created without what we would recognize as copyright protection.  And, as well argued in the comments at Volokh, it almost certainly could not have been created at all under today’s ever-expanding copyright laws, considering how “derivative” the Bard’s work was of others’ — even if it was an improvement.   As I was writing my own little comment on that thread and linking to those older posts about the Colting case, it made me wonder what ever happened to the appeal there. So I checked.

Here’s what happened, and only a month ago:

[A]ccording to Publishers’ Weekly and the Bookseller, agreement has been reached to publish the book, which takes an aged character, who is evidently the protagonist of the original book, Holden Caulfield, on a journey similar to his original odyssey, escaping from an old people’s home back to his old haunts in New York. Echoing the original, it ends with its character, 76-year-old Mr C, standing near a carousel in Central Park. . . .

Colting’s lawyers were granted an appeal hearing and Publishers’ Weekly says that under a settlement signed last month he has agreed not to publish or distribute his book in the US or Canada until the expiry of copyright on the original [when everyone reading this will almost certainly be dead — RDC], but is allowed to publish elsewhere. Publishers in six countries are said to be interested.

There are restrictions, though: Colting is barred from dedicating it to Salinger, mentioning The Catcher in the Rye or even referring to the previous litigation. He told the magazine: “We’ve come to an agreement with the Salinger Trust but I am afraid I cannot go into any specifics. Let’s just say that the book will be published in a number of countries this year and I am very pleased with that.”

I find this pretty surprising, considering the Second Circuit’s opinion lifting the original ban. In other words, I believe the publisher has sold out surprisingly cheap in this settlement.  But I was never much of a literature man.

I guess the question here, however, is how meaningful is a promise not to “publish or distribute” a book in a certain country?

Well, actually — it could be pretty meaningful.

This doesn’t sound very American at all.  Freedom-of-the-press-wise.  Now that I think about it.

In Caulfieldian fashion, however, I am sure I would much rather… not.

UPDATE:  Looks like owners of literary characters– and the personalities of their creators? — are going to make a hobbit of this sort of thing.

Originally posted 2011-02-17 15:08:49. Republished by Blog Post Promoter