More thoughts on Fair Use and Catcher in the Rye

June 19, 2009

Let me say first of all many thanks to Vince Manapat who made a very excellent reply to my prior article, in which I quoted his Art Law blog on the J.D. Salinger copyright infringement case.  Let me reiterate that I have never read the original nor the purported sequel, and so I am going to withhold any definitive opinion on this case.  It seems that the parody defense is not a solid here as it may have seemed at first blush, and that alleging a work is parody should not per se be enough to make it so.  Indeed, despite the inherent difficulties for judges in making aesthetic decisions, a prohibitions against value-judgments results in a slippery slope in the opposite direction.  As Mr. Manapat points out:

Judges must make aesthetic decisions; if they do not, then there would be no such thing as copyright protection. For instance, if a judge cannot decide whether something is a parody, then all an infringer would have to do is claim their work is a “parody” and not be liable.

So if we just look at the face of it, the work doesn’t seem to be parody, which has more of a bright line surrounding it.  Having delved into a little more research on the subject, however, I am finding strong indications that there is a good defense in this case on the grounds that the work is criticism.  Mr. Manapat reported that this argument has not been favorably received in court so far:

Rosenthal responded that it was criticism of J.D. Salinger and of Catcher in the Rye.   But Judge Batts correctly noted that it must be criticism of the work it copies.  Otherwise, any infringing work could be inoculated just by the very fact that it criticizes.  Mr. Rosenthal did not relinquish this argument without a fight, as he reiterated it many times throughout the proceeding…  Ultimately, whatever the merits of this argument, it was not sufficient to prevent Judge Batts from enjoining the publication of the book. from Catcher in the Rye Alleged Sequel…

So what is this purported sequel about, anyway? Well:

In “60 Years Later,” scheduled to be published in Britain this summer and in the United States in the fall, a character very much like Caulfield is 76 years old, an escapee from a retirement home and identified as “Mr. C.” The novel is dedicated to Salinger and the author is a character in it, too, wondering whether to continue Caulfield’s story.

“The Sequel is not a parody and it does not comment upon or criticize the original,” Salinger’s lawsuit alleged. “It is a ripoff pure and simple.” from Author J.D. Salinger Taking Another Fan to Court

Now, being a “ripoff pure and simple” may go toward negating the parody defense, but I would argue that it should likewise undermine the defense that 60 Years After serves as criticism.  Perhaps criticism ought to be more a fluid concept, unlike the bright-line that defines parody.  Though unusual, I think it is not inconceivable that legitimate textual criticism can be made in the form of a narrative, I have seen it before in other sorts of academic literature.  Not the least reason for this genre is that it is more entertaining and gripping for the reading than dry academic prose.  The frontiers of art are seeing a breakdown of what it means for a work of art to be “original,” like the way time and space breaks down at the event horizon of a black hole.  You can call this phenomenon post-modernism:

Aggressively and self-consciously derivative in its ideology, post-modernist art critiques the very attributes that copyright law uses to define art: namely, artistic creativity and originality…. Neither the Copyright Act nor its legislative history limit an artist to commenting on or criticizing only the underlying copyrighted work. It seems apparent, instead, that criticism and commentary are meant to encompass all forms of criticism and commentary, so as not to restrict freedom of expression impermissibly. By dictating that an artist must be directly criticizing or commenting on the underlying work in order to use a copyrighted work in another work of art, the court has censored the content of permissible artistic speech. Lynne A. Greenberg, The Art of Appropriation: Puppies, Piracy and Post-Modernism, 11 Cardozo Arts & Ent LJ 1

I suppose then the question I ought to ask is not whether a judge should make an aesthetic decision but which aesthetic decision to make.  And in this case what it seems to come down to is 60 Years After a good faith attempt and criticism.  And moreover, what does it take to separate criticism from a “ripoff pure and simple?”

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