Fair Use and Catcher in the Rye
June 19, 2009
Having never read Catcher in the Rye, and thus not being a fan of it, I am a little perplexed at the emotional reaction some commentators are having to the litigation surrounding the unauthorized sequel to the J.D. Salinger novel. The anonymously writted sequel is called 60 Years After and appropriately enough it takes place 60 Years After the events of Catcher in the Rye. According to this article, there has recently been issued a preliminary injunction against publication of 60 Years After while the case is litigated.
The idea of writing a sequel to a major work of literature isn’t a particularly innovative one, it has often been applied to works that are securely in the public domain, and these can range from highly literate and important in the own right (i.e. The King Must Die) to, well, not as literate or important (see the authorized K. W. Jeter sequels to Do Androids Dream of Electric Sheep). Considering what an important and monolithic piece of literature Catcher in the Rye is, it isn’t really all that unusual to have a derivative works, and apparently there is a non-frivolous legal question as to whether or not it pushes the boundaries of parody. But it surprises me when I see articles like this advocating that the judge in the case make an “aesthetic” judgment:
Essentially, this case may come down to the question of how much copying is permissible when one is making a parody.
How much is too much is a question to which the courts have given no clear answer. But the line has to be drawn at some point. This will require judges to decide whether there are too many copied elements that are not essential to the parody, and this comes dangerously close to something judges loathe to do: make aesthetic judgments. Nevertheless, if the judges are too squeamish to do this, then any writer can merely take a famous work of fiction, change some fundamental trait of a character such as age or race, and in rote fashion take that character through all of the book’s scenes without any additional creativity and the author of the “parody” will be protected under fair use. from Why J.D. Salinger May be Justified in Seeking to Stop Publication of Catcher in the Rye Sequel
This is a problematic line of reasoning and potentially a slippery slope. Judges really should never make aesthetic judgments, because these really are “in the eye of the beholder.” If a judge makes a personal aesthetic judgment it could be decided that the change of a fundamental trait, i.e. making Holden Caufield 60 years older, is somehow not of sufficient creative value to merit the distinction of fair use. It is not for the judge to decide if a particular work of fiction is good enough to be a parody, rather the place of the judge is simply to decide if the threshold has been met.
For the purposes of copyright law, the nub of the definitions, and the heart of any parodist’s claim to quote from existing material, is the use of some elements of a prior author’s composition to create a new one that, at least in part, comments on that author’s works…If, on the contrary, the commentary has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another’s work diminishes accordingly (if it does not vanish), and other factors, like the extent of its commerciality, loom larger. Campbell v. Acuff-Rose Music, 510 U.S. 569, 580 (citations omitted).
Even though the result may be a product that is derivative and not especially funny, it is not for the judge to decide these things. Parody is so broad as to allow even direct quotations from the original, and it is certainly not clear from the facts at hand as to whether or not the author of 60 Years After somehow avoided the drudgey of working up something fresh, or if by appeal to the original was able to create something new, thereby falling within the protection of fair use. I don’t know enough about the case to say, but it is far from obvious. Furthermore, I think there is a danger in leaving aesthetic decisions up to a judge, as that can’t help but have a chilling effect on artists, can could potentially set a terrible precedent in the era of the remix. To wit:
The increasing popularity of the mash-up movement may well spur the market to correct the problem of high licensing fees or outright refusals to license samples for use in new works. 191 However, a fair use enclave for truly transformative re-contextualized works should nevertheless protect those ambitious new artists who aim to use existing materials in ways that no one else would imagine. To allow such uses would re-affirm the copyright’s goal of ensuring public enrichment through access to new expression. After all, “the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works.” Nicholas B. Lewis, Shades of Grey: Can the Copyright Fair Use Defense Adapt to New Re-Contextualized Forms of Music and Art?, 55 Am. U.L. Rev. 267, 305 (citation omitted).