District Court Bans 'Catcher In The Rye' Sequel; Since When Did The US Ban Books?

from the free-speech? dept

Last month, we wrote about a lawsuit from JD Salinger over an attempt to publish a "sequel" to Salinger's famous Catcher in the Rye written by Fredrik Colting under the pseudonym JD California. In a similar case, concerning a "parallel world" for Gone With the Wind, after an initial banning, the book was eventually allowed to be published. You might think that the district court would look at this and recognize that it goes against pretty much all common sense to ban this book... but you'd be wrong. After an initial injunction, the judge has now banned publication of the book.

Yes, you read that right. A US court has banned the publication of a book, even though the creative expression in the book is unique, and it merely uses characters from another book (which it doesn't even name the same). This is a sickening result for anyone who believes in the First Amendment, the true purpose of copyright law and basic creativity. It's difficult to see any reasonable justification for this ruling. Much of the ruling goes through the four factors of fair use, focusing a lot on why the new work is not a parody (which is why the judge says it's different than the Gone With the Wind/Wind Done Gone situation). This misses the larger point: the work is entirely new. It's not directly copying any actual expression. The real problem here is the idea that only "parody" can be considered fair use in these situations. There's simply no reasonable logic to support that.

The rest of the discussion on the four factors fair use test is rather troubling. Most specifically, the judge's analysis of the third prong, concerning "the amount of the copyrighted work" being used seems to go to great lengths to explain how the new book uses a great deal from the old book, but bases this on similarities between the way the character acts, not any actual copying of expression (other than the odd word or phrase, which would certainly seem to be minimal actual copying). Similarity (on purpose) is not copying. Stunningly, the judge even points out that the stories have similar arcs (which isn't surprising), but to claim that because of a similar story arc there's infringement is incredibly troubling for pretty much any writer. After all, people write stories with similar arcs all the time.

Finally, and perhaps most disturbing of all, is her finding on the fourth prong, concerning the impact on the market for the copyrighted work, she actually finds that this weighs against fair use. Again, the logic simply does not add up. The judge admits that it probably would not negatively impact the actual demand for Catcher in the Rye, she actually ignores the fact that the opposite would likely occur. If anything, it will drive more people to go out and buy copies of the original to read (or, more likely in many cases to re-read) to go along with this new book. The judge's reasoning is that this book would harm the market for an actual sequel, but again, that's difficult to square with reality. If JD Salinger announced he was writing a sequel... that would make tremendous news, and it would be quite clear that people would rush to get the "real" sequel. Even if he were to license it (which appears to be the judge's main concern) to someone else to write (which seems insanely unlikely given Salinger's actions to date), people would quickly learn of the "authorized" vs. "unauthorized" versions. It's difficult to see how it would harm the market at all.

This is a very troubling ruling that seems to go against the very basics of copyright law in many, many ways. Hopefully, the ruling does not stand for very long.


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  1.  
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    Anonymous Coward, Jul 2nd, 2009 @ 7:58am

    Hopefully, the judge will not be sitting on her bench for very long and get un-elected.

     

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    Ima Fish (profile), Jul 2nd, 2009 @ 8:01am

    "Since When Did The US Ban Books?"

    You've written before about the problem with copyright law contradicting the free speech rights given by the first amendment. This is a perfect example of that problem. I'm surprised you didn't relate back to that.

     

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    Anonymous Coward, Jul 2nd, 2009 @ 8:06am

    Why is this troubling? It goes to the heart of a derivitive work, which has always been covered by Copyright. You can't just take a bunch of characters from a existing novel and put them in your own novel, even if you change the names.

     

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    Anonymous Coward, Jul 2nd, 2009 @ 8:07am

    Amazing

    Mike:

    You got this exactly right, and the judge got it wrong. The fourth prong of the test fails. If the sequel is any good it mostly likely will generate sales for the original. I suspect the judge may have erred in other prongs as well, but the fourth prong seems terribly obvious.

     

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    Dark Helmet (profile), Jul 2nd, 2009 @ 8:08am

    True

    "After all, people write stories with similar arcs all the time."

    As someone who has their first completed work currently out for publishing consideration, I can assure you that it goes into even more minute detail than this. If you read any book on writing fiction, they'll have a chapter on opening hooks and the importance of the 1st chapter. This is because it's so difficult to write an effective opening. And every single one of these books all says the exact same thing: pay attention to how others do it, and do something similar.

    I went so far as to open up the first chapter of one of my favorite authors, Crichton, and read along his first chapter while writing my own (with purely original content) in order to emulate the way he weaves opening suspense. Would that be considered infringement? Will my book be banned because I wanted to write as well as a master?

     

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    C.T., Jul 2nd, 2009 @ 8:19am

    First Amendment and Copyright Injunctions

    Mike - I couldn't disagree more with your analysis, but I nonetheless agree that we should be troubled by the use of injunctions in copyright disputes.

    For a fascinating discussion of the constitutionality of injunctions in copyright disputes, you should read Eugene Volokh and Mark Lemley's "Freedom of Speech and Injunctions in Intellectual Property Cases." Available here - http://papers.ssrn.com/sol3/papers.cfm?abstract_id=85608


    However, your fair use analysis is way, way off the mark.

     

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    Ima Fish (profile), Jul 2nd, 2009 @ 8:20am

    This decision will be overturned and this is why.

    A restraining order can only be granted when there is irreparable harm. The judge in this case erroneously found irreparable harm. However, any situation that can be solved with monetary damages cannot be irreparable harm. An example of irreparable harm might involve real property. The destruction of real property cannot be solved with monetary damages because, under the law, real property is unique. Another example might involve someone's life, which again is unique.

    What the judge should have done is denied the request for a retraining order, let the book be sold, and let the authors fight it out for monetary damages. That solution doesn't shit on the first amendment and lets Salinger recover any damages he's entitled to.

     

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    Anonymous Coward, Jul 2nd, 2009 @ 8:38am

    Re:

    Your assumption is that the original author (or rights holder) want money - they don't. This is very simply building on top of someone else's work, attempting to profit from the head start. It isn't a parody / contra (unlike The Wind Done Blown or whatever was called), it is just a derivative work.

    If the coyright holder doesn't want to license, they are not legally obligated. Therefore, if the book is allowed to be published, it could cause irreparable harm on the value of their asset, as well as damaging and limiting future use of the characters by the original author.

     

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    Anonymous_1, Jul 2nd, 2009 @ 8:46am

    Mike in two words, abbreviated: BS.
    This book is plain derivative, nothing more, nothing less.
    It's times like this when I wonder, is it really about free speech with you, or is it about every idea being free, bar none. I know people support the later, I just wish they would have the decency to try and defend it. Utter BS.

     

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    Brooks (profile), Jul 2nd, 2009 @ 8:47am

    Re: First Amendment and Copyright Injunctions

    Um. So Mike layed out the four fair use prongs that the judge used, enumerated her reasoning, expressed his disagreement, and called out why (in his opinion) she was wrong on each count.

    You think he's "way off the mark." Great, I'd be interested to hear why you think the unauthorized sequel will hurt the market for the original, or why parody really is the only way to build on what others have done before.

    So far, Mike has a much stronger argument than you do.

     

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    Collin, Jul 2nd, 2009 @ 8:55am

    Re:

    She is a Federal Judge, nominated by the President and approved by the Senate. Her term is for life. She is not elected.

     

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    lavi d (profile), Jul 2nd, 2009 @ 8:59am

    Correction

    cat post | sed -e 's/prong/point/g'

     

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    C.T., Jul 2nd, 2009 @ 9:02am

    Re: Re: First Amendment and Copyright Injunctions

    Mike simply isn't versed in the actual case law. He expresses opinions on the way things should be, but his opinions aren't grounded in precedent.

    His discussion of the parody issue draws on false distinctions and is misleading. It's not that the court is suggesting that parody is the only form of fair use in these types of situations, it's that parodies are presumptively fair use and the defendant's main argument was that the sequel was a parody. Therefore, it was important for the court to debunk that argument.

    A theme that runs throughout Mike's analysis is that only verbatim copying can constitute "copying" for purposes of an infringement/fair use analysis. This is simply not the case. There are two forms of similarity that are relevant - "fragmented literal similarity" (actual copying) and "comprehensive non-literal similarity." If you take enough of another person's work, even if it isn't literal expression, it can rise to the level of actionable copying.

    Regarding the fourth factor, Mike's analysis is as speculative as the analysis he criticizes for being speculative. The fact remains that where an author is unwilling to license his work for use in any subsequent work, the factor generally weighs in the plaintiff's favor. Nonetheless, even if the fourth factor were declared a wash, the other 3 factors weigh against a finding of fair use.

     

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    Steve R. (profile), Jul 2nd, 2009 @ 9:05am

    The New York Times Does it Again

    What is also troubling is how the Times is biased in favor of oppressive copyright. To think that the Times is "noted" for its left wing pandering, but here (when it comes to copyright) it is quite the reverse.

    The biased lead sentence: "In a victory for the reclusive writer J. D. Salinger, a federal judge on Wednesday indefinitely banned publication in the United States of a new book by a Swedish author that contains a 76-year-old version of Holden Caulfield, the protagonist of “The Catcher in the Rye.”

    In the Times article Supreme Court Allows Wider DVR Use the lead sentence: "The Supreme Court on Monday delivered a blow to the television networks when it declined to hear a case about a digital video recorder technology, opening the gate for wider use of DVR systems."

    The lead sentences could easily have been written from a positive consumer (traditional liberal) point of view or at least presented in a neutral manner. I wonder how many readers of the Times are oblivious to the bias of the Times when it comes to so-called intellectual property. Just where is the fair and balanced news these days?

     

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    Ima Fish (profile), Jul 2nd, 2009 @ 9:08am

    Re: Re:

    "Your assumption is that the original author (or rights holder) want money - they don't."

    Under the law, what the person subjectively wants does not suddenly make it irreparable harm.

    "This is very simply building on top of someone else's work, attempting to profit from the head start"

    Being influenced by and building off of other copyrighted works is perfectly legal. Please show me one completely original hit song, book, or movie that did not build off of someone else's work.

    "Therefore, if the book is allowed to be published, it could cause irreparable harm on the value of their asset, as well as damaging and limiting future use of the characters by the original author."

    You're assuming your conclusions. Exactly how would Salinger be irreparably harmed? Would his arm be broken? Would he lose 10 pounds? Explain the specific harm.

    Exactly how would the publication of this book limit the "future use of the characters by the original author." I don't get that at all. Salinger is perfectly free to do as he pleases with the characters.

     

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    Eponymous Coward, Jul 2nd, 2009 @ 9:11am

    RE: 100% agree with C.T.

    I agree 100% with C.T.'s comments @13. In fact, I was quite surprised at Mike's apparently incredulity at the fact that copyright law applies to non-literal copying...this is hardly a new development.

     

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    Beefcake, Jul 2nd, 2009 @ 9:15am

    Re: First Amendment and Copyright Injunctions

    Why is fair use even required? It's a different book altogether.

     

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    Brooks (profile), Jul 2nd, 2009 @ 9:17am

    Re: Re:

    So you're saying that society is best served by laws that prevent people from building on other peoples' works?

    Sorry, I don't see how that's the case at all. Copyright should be, and used to be, exactly about fostering artistic expression by ensuring that authors would be able to collect for the *works* that they create, not for the *ideas*.

    You've but together a good "fairness" argument: the unauthorized sequel wouldn't exist without the original, so the original author has a right to determine whether the sequel can be published. But in order to bring it full circle and address the social aspect of copyright law, you need do demonstrate how this practice would discourage authors from writing books.

    Would Salinger have said "you know what, screw it, someone else might eventually make a buck off this and not cut me in, so I won't bother producing the work in the first place"? I'm going to argue that, no, Salinger has already been protected and still receives revenue from his work, and that that is the extent of what copyright should cover.

     

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    Osno (profile), Jul 2nd, 2009 @ 9:20am

    I thought Salinger was supposed to be living in a cave or something. His last book was published in 1963. He's another great success of copyright law, laying on his laurels for over 30 years when he could have been writing. Instead, he chooses to prevent other people to write. I still don't get what good has copyright done to society, ever.

     

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    Rob, Jul 2nd, 2009 @ 9:30am

    Ummm... the original was published in 1951 -- making it 58 years old -- isn't the term on copyrighted works 50 years? Why isn't this novel in the public domain by now?

     

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    Anonymous Coward, Jul 2nd, 2009 @ 9:31am

    Re: #11

    Thank goodness for affirmative action!

     

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    Osno (profile), Jul 2nd, 2009 @ 9:34am

    Try 70 years after the original author dies. Catcher in the Rye will not be in the public domain for a good 80 years, at least.

     

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    Esahc (profile), Jul 2nd, 2009 @ 9:37am

    Re:

    Yes, you can.

     

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  24.  
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    Anonymous Coward, Jul 2nd, 2009 @ 9:47am

    There goes my trilogy book deal, Duke of the Bracelets, about Freddo Baggets' journey to destroy his "one bracelet to govern them all", on the Isle of Martyr where the silhouttes lie.

     

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    Anonymous Coward, Jul 2nd, 2009 @ 9:49am

    Re:

    How many television shows have scripts that are copyrighted but have the SAME EXACT plot and characters of different show? How about the idea of an ugly stupid husband married to a smart attractive housewife?

     

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  26.  
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    Anonymous Coward, Jul 2nd, 2009 @ 9:55am

    Re:

    I was going to write Ethan Frome 2: Electric Boogaloo but Liam Neeson refused to play him for the movie adaptation, and seriously, what's Ethan Frome without Liam Neeson?







    for the record: FUCK ETHAN FROME AND MS. MARGOLIS, MY 10TH GRADE ENGLISH CLASS TEACHER!!!!!!

     

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  27.  
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    F451, Jul 2nd, 2009 @ 9:59am

    Ban them... burn them...

    First we start banning books... then we start burning them...

    I think paper burns at about.... 451 degree fahrenheit

     

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  28.  
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    peter (profile), Jul 2nd, 2009 @ 10:05am

    Mike - as you know, I'm usually on your side on this one, but I can't make the same judgment you have. The plain fact is that if all the defendant has done is exploit the value Salinger created in Holden Caulfield, he's not been sufficiently transformative to claim fair use.

    Moreover, we really can't make that judgment here -- neither you nor I have seen the "sequel." Nor can we, which gets to why there IS irreparable harm. If any copy got out, it would be instantly disseminated. Salinger is trying to stop exactly that, and is entitled to that if it's an infringement. For the court to deny the TRO therefore would create irreparable harm. And if, after a full hearing on the merits the judge determines the work is fair use, the harm the defendant will have suffered will be fairly easy to calculate.

    And I'm sure the defendant doesn't want a copy to get out pre-publication either. If it hit the internet, he'd lose a lot of market if and when the work does get published.

    Finally, just to give the judge some credit -- Salinger's expert, Martha Woodmansee (whose sworn declaration is referred to in the decision as the "Woodmansee Decl.") is a colleague, a friend of mine, one of the world's leading scholars on the history of copyright, and someone who is very sympathetic personally toward and whose work is very supportive of the kind of broader recognition of creativity (in, among other things, explicitly appropriative art) you and I support

     

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    Hulser (profile), Jul 2nd, 2009 @ 10:15am

    Re: Re: Re: First Amendment and Copyright Injunctions

    His discussion of the parody issue draws on false distinctions and is misleading. It's not that the court is suggesting that parody is the only form of fair use in these types of situations, it's that parodies are presumptively fair use and the defendant's main argument was that the sequel was a parody. Therefore, it was important for the court to debunk that argument.

    I have to agree with you here. From the linked article...

    "Mr. Colting's lawyers argued, among other things, that the new novel, titled '60 Years Later: Coming Through the Rye,' did not violate copyright laws because it amounted to a critical parody that had the effect of transforming the original work."

    It's my understanding that a judge rules on the arguments that are actually presented, not any possible argument. So, if Colting's lawyer said, "Don't ban this book because it's a parody" the fact that the judge said that it wasn't a parody doesn't mean that only parodies are protected. Just that, in this particular case, the argument presented was not applicable.

     

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  30.  
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    Anonymous Coward, Jul 2nd, 2009 @ 10:18am

    I just wish this C.T. person would stop creating alternate profiles to post things like "I agree 100% with C.T." or "C.T. is exactly right" or "C.T. is perfect and is a greek god and I want his children.".

     

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    Sneeje (profile), Jul 2nd, 2009 @ 10:23am

    Re:

    Why is derivative relevant to whether or not it is free speech? And at what is the threshold for when derivative elements would constrain free speech?

     

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    Sneeje (profile), Jul 2nd, 2009 @ 10:32am

    What is the threshold for building off someone's work?

    I can see why the legal arguments would not be as clearly in the favor of publishing the "sequel" as Mike would recommend, but I'm truly stumped as to what the landscape of reason is here.

    Dark Helmet gave a really great example of his experience writing a book that seems like it could be questionable under some of the interpretations here. I would dearly love to understand the legal threshold for when something goes from building on, to transformative, to infringing.

    For example, if I write a book that has an x-wing in it, but no other star wars jargon or canon, is that infringing? What if I write an unique star trek novel that uses all of the canon, jargon, and all of the characters, but every single one of them have completely different names?

    What happens if I write a book about a russian submarine that goes rogue?

    I'm truly lost. Regardless of the legal arguments, this seems like the wrong result. As an example, by this logic, The Once and Future King could not have been written (today) because it would have been infringing on the original King Arthur fables/stories (if they were not in the public domain).

     

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  33.  
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    peter (profile), Jul 2nd, 2009 @ 10:46am

    Sneeje - your example of The Once and Future King is not helpful for a couple of reasons which you seem to recognize. Each of these cases is determined on its own facts. The question is whether the challenged work is so "transformative" it stands on its own as a creative work. We'll never know about The Once and Future King for precisely the reason you state: the stories and their characters are in the public domain. So you could write a new Camelot story (though, of course, if you copied and pasted substantial portions of White's novel that were deemed "creative") you'd still have infringed his work. Moreover, even if those stories were not in the public domain, White didn't create them. (And, arguably, Arthur was a historical figure who can't therefore be copyrighted as a character).

    In contrast, Salinger created Holden Caulfield, and the finding he is a copyrighted character (assuming that characters can be copyrighted, which is not definitive as a legal matter but widely accepted), merely taking that character (which the judge determined the new book did, making him 80 but intellectually unchanged from his character in the novel) and placing him in a new story is a no-no.

    What we wouldn't have is "fan fiction," which in fact we do. But not because fan fiction doesn't infringe copyrights but), rather, because the copyright holders let the fan fiction out there alone. But Salinger is an odd duck -- nothing published since, what, 1964? And with a public plainly thirsting for anything new from him. It's exploiting that public thirst (which he created by creating his character and by his decades' long silence that is the real problem here. No one's going to pay for Star Trek fan fiction. But there may be enough thirst for Holden Caulfield in my generation that even a 3d rate knockoff could exploit it. It is, I think, really that the market that can be exploited here is precisely one Salinger created (unless the new work is sufficiently transformative that it stands on its own as a creative work) is the problem the author of the sequel has.

     

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  34.  
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    CT Fan, Jul 2nd, 2009 @ 10:53am

    CT is awesome!

    CT obviously is of superior intellect.

     

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    taoareyou (profile), Jul 2nd, 2009 @ 11:00am

    In the End, those who want it will have it

    So it cannot be published in the US. Via the magic of International Trade someone can get on the Net, order the book from a country that will allow it to be published there and then have it shipped to them here.

    Who loses here? US publishers and US retailers.

     

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  36.  
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    Anonymous Coward, Jul 2nd, 2009 @ 11:07am

    Re: The New York Times Does it Again

    Bias, hmmm? Let me re-read those headlines.

    Nope, sorry, but I'm not seeing what you're seeing.

    Is this it? "In a victory for the reclusive writer J. D. Salinger..." (I'm thinking that Mr. Salinger probably considered the decision a victory, no? Accurate.)

    How 'bout this? "... delivered a blow to the television networks..." (An accurate interpretation, it would seem, since they lost.)

    And as for the consumer point of view, one might think that "a blow to the television networks" which greenlighted DVR use might be something consumers would like to see, no?

    The Times my be guilty of snooty posturing and selective reporting, but the bias here isn't evident, methinks.

     

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    Anonymous Coward, Jul 2nd, 2009 @ 11:20am

    stupid

    So the fact that catcher in the rye built on other works of the time makes no case in the matter, hence the reason we have styles of writing. He stole the style of his writing. We do not create in a vacuum.

     

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  38.  
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    Vic, Jul 2nd, 2009 @ 11:27am

    Oh, well...

    Note to the author: Just put the whole new book to the public domain. I guarantee you'll have plenty of readers in the US and will make more money on your next book!

    Note to self: Fire up my BitTorrent client!

     

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  39.  
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    Mike Masnick (profile), Jul 2nd, 2009 @ 11:36am

    Re:

    Mike - as you know, I'm usually on your side on this one, but I can't make the same judgment you have. The plain fact is that if all the defendant has done is exploit the value Salinger created in Holden Caulfield, he's not been sufficiently transformative to claim fair use.

    Perhaps... but I'm arguing it shouldn't even be a fair use claim at all, since it's not really copying any of the actual expression...

    Moreover, we really can't make that judgment here -- neither you nor I have seen the "sequel." Nor can we, which gets to why there IS irreparable harm. If any copy got out, it would be instantly disseminated.

    But it is out. The book was released in the UK without a problem...

    Finally, just to give the judge some credit -- Salinger's expert, Martha Woodmansee (whose sworn declaration is referred to in the decision as the "Woodmansee Decl.") is a colleague, a friend of mine, one of the world's leading scholars on the history of copyright, and someone who is very sympathetic personally toward and whose work is very supportive of the kind of broader recognition of creativity (in, among other things, explicitly appropriative art) you and I support

    Fair enough. I just find it quite troubling when we're banning books of original expression.

     

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  40.  
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    Anonymous Coward, Jul 2nd, 2009 @ 11:45am

    stick the book on the internet

    fuck them

     

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  41.  
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    Dark Helmet (profile), Jul 2nd, 2009 @ 11:51am

    Re: Oh, well...

    I was actually thinking about doing this with my work if Baen comes back with a rejection letter (which, having studied how the publishing world works and as I've not been previously pubilshed, is extremely likely).

    For all of my belief in this site and the theory, I'm not sure how to go about profiting by releasing my work for free. Plus I'm not skilled at document formatting in the way that publishers of Ebooks are, to make it look all pretty and secure it and whatnot.

    All I know is I'd rather start another from scratch than go through one of those vanity publishers.

     

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    Sneeje (profile), Jul 2nd, 2009 @ 12:39pm

    Re:

    Agreed on my example, I did waffle on whether to include it. :)

    I understand that each case is determined on the facts, but the gray area of what is infringing and what is not is so wide, I'm not sure how any reasonable person could navigate it. It seems reasonable to me that we, as a society, ought to want individuals to build on and transform the works of others for the times and to create innovations.

    There are two points here I think, but please correct me if I misunderstand. One is that the character of Holden Caulfield was found to be a copyrighted character. I can't debate this, but this falls under my opinion of it is the wrong result. Copyrighting characters seems wrong in my inexpert opinion mostly because there are very few, if any original characters. In fact, this smells to me to be more of a trademark-type argument or situation.

    The other is that the issue seems to be decided by what is commercially viable--that copyright infringement should be found when there is harm. Again, perhaps, but this seems backwards. In particular in this case, the argument seems to be "because I *might* use it". In which case I would argue that any harm is null because there is no reasonable expectation of future profits by Salinger.

    In particular this seems no different than patent trolls that hold patents but never produce anything.

     

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  43.  
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    Fushta, Jul 2nd, 2009 @ 12:45pm

    Re: Oh, well...

    DH,
    I think there is a benefit to releasing your book "for free" into the public domain. Let's say your book is actively shared on TPB, and it's so good that it is widely shared, and shoots up the popularity list gaining wide recognition and critical acclaim. That recognition alone could be the difference between getting your next book published, or ignored.

    That is...if you plan to write another book in the future.

     

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  44.  
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    Adam (profile), Jul 2nd, 2009 @ 12:46pm

    Since always...

    The US has banned a lot of books over the years. Mostly from high schools in silly efforts to protect the children from some nebulous "threat". But any time a book has been successfully banned, it lays the groundwork for the next. Last I read, (which was a while ago now) Judy Blume was the most banned author in the US.

     

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  45.  
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    DS, Jul 2nd, 2009 @ 12:49pm

    Re: Re:

    Why, was she hot?

     

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  46.  
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    Dark Helmet (profile), Jul 2nd, 2009 @ 12:52pm

    Re: Re: Oh, well...

    Already working on a sequel :)

    But the problem for me is my lack of necessary expertise in a variety of critical arenas:

    1. PDF/Document preparation and securiy - for both presentation and to make sure there aren't any security issues w/the PDF or eBook format

    2. Marketing - I have SOME ideas, but they're fledgling and not as well-rounded as a traditional publishing house would have

    3. Since my Steven Spielburgh directed movie contract hasn't made it to me in the mail yet, I still work an 8-5 in IT in Chicago. Marketing/promotion/etc. all take time, which I have a limited amount of.

    Now, I'm not saying I'm giving up. I just know the hurdles I have here. I had also toyed with the idea of releasing the book chapter by chapter (sort of like a serial), and writing/releasing the next chapter via website once enough donations had been reached, like via paypal, thus proving sufficient interest to keep working on and/or marketing the story. Unfortunately, I can add a complete ignorance of e-commerce website design to my list of inabilities.

     

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  47.  
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    Anonymous Coward, Jul 2nd, 2009 @ 2:01pm

    I'd be interested what other authors have to say on the matter. Off the top of my head I can think of several similar cases. For example, I have several Sherlock Holmes novels written by several authoras other than Conan Doyle, and I'm sure he didn't "approve" all these works, especially since a few of them are rather bad. But even the bad ones don't take away from the genius or demand of Doyle's works.

    A better examples would be Dean Koontz, who actually wrote a trilogy of Frankenstein novels, sequels to the original set in the modern world (Frankenstein and the monster are both over a century old now). Granted copyright on Shelly's works are likely in the public domain now, whereas Rye's copyright probably isn't (technically), but it should be.

    Copyright was intended for a LIMITED TIME, to allowed those in the creative arts time to create new works, and most people would/will respect that. It was not intended to allow people to live forever off of what they did 20, 50 or 100 years ago, and few if any people will respect (or adhere) to attempts to artificially make it so (history has proven time and time again that people will ignore bad laws, in fact rebellion against similar bad laws is the whole reason the US is its own nation and no longer under British law).

    furthermore, the "similar story arc" angle is extremely questionable as well. For example, it seems quite apparent to me that Paolini (Eragon) borrowed quite liberally from McCaffrey's Pern series. In fact it could be argued that the world of Eragon could be a "distant future" of the Pern world without the threat of threadfall. Should McCaffrey be allowed to sue for violating "similar story ideas"?

     

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  48.  
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    Anonymous Coward, Jul 2nd, 2009 @ 2:16pm

    Re: Re:

    I agree. It might be stupid for the owners of the copyright to prohibit the publishing of a derivative work, but that is nonetheless their right. People do stupid stuff with their "real" property all the time.

    It's like saying you shouldn't be able to prohibit people from walking across the paved walkway in your back yard, but you should have to sue them for damages. There may not be any substantive damages from someone walking across a paved walkway in my yard, but I have the right to stop them from doing it anyway.

     

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  49.  
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    Anonymous Coward, Jul 2nd, 2009 @ 2:25pm

    Re: Re: Re:

    Why should how "society is best served" even come into play? That's too subjective. It should be about property rights and the right of people to use their property as they see fit.

     

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  50.  
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    another mike (profile), Jul 2nd, 2009 @ 2:36pm

    I hated Catcher in the Rye. A lot of it was just a general level of teenage counter-culture anger growing up as Generation X. But I also specifically hated my english teacher who assigned that stupid book. I get that it's a classic; Mark Twain said that classics are the books everyone wishes they had read. If there's any "market influence" to be had, it's against me ever reading a sequel of that book.

     

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  51.  
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    Dark Helmet (profile), Jul 2nd, 2009 @ 2:47pm

    Re: Re: Re: Re:

    "Why should how "society is best served" even come into play? That's too subjective. It should be about property rights and the right of people to use their property as they see fit."

    I'll agree to this when they pay property taxes on their "property". You kids! Get off of my intellectual property!!!

     

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  52.  
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    peter (profile), Jul 2nd, 2009 @ 4:47pm

    Mike - you write that you find it troubling to use copyright to prevent the publication of "original expression," but that's precisely the question: is the book really original or not. I like to see the doubtful case decided in favor of publication, but the plain fact is that as a pragmatic matter the legal position that has the best shot of permitting works that appropriate from copyrighted works is the one the court applied: a work that appropriates substantial parts of a copyrighted work is non-infringing fair use if it is "transformative" (that is, sufficiently original to stand on its own as a creative work) and has no impact on the original's market. The judge, having compared the 2 works, concluded that the new one wasn't original enough. An expert supported her testimony. (The fact that the expert turns out to be someone whose opinion I myself would defer to on these matters is something that I hadn't known about until I read the opinion -- since the case began she and I have not been in the same city at the same time.) My point about the fact neither you nor I have read the new work (even though, as you rightly correct me, it is available overseas) really was only meant to emphasize that it's impossible for us to opine on its originality. Sneeje -- you're right. There's a lot of gray. That's just the way it is. There are some areas grayer than others. The existing case law on music is black. Basically, the courts that everyone follows held that using any recorded sample is infringement. Those courts didn't even consider fair use arguments. Long story -- but essentially the music industry liked that rule because it protected their property. But it's breaking down now. No one's dared take on Girl Talk, for example, because even though his (Greg Gillis=Girl Talk) work is nothing but brief samples woven together, it's so original and so plainly couldn't substitute for the originals that no one will sue him and threaten the existing precedents being rejected. In other words, the grayness cuts both ways. D.J. Danger Mouse was meaning a lot of things when he called his work the Grey Album. See http://whatisfairuse.blogspot.com/search?q=d.j.+danger+mouse Anonymous Coward -- Your equation -- real property=intellectual property -- is precisely the mistake a lot of people make. The Copyright Clause in the Constitution states (and has been interpreted to mean) that copyright is to promote creativity and that to the extent it stifles creativity it has no legitimacy. That's the plain truth, even if there's a lot of disagreement what this means in practice (a lot of people, including myself and, I'm sure, Mike, thought that the Mickey Mouse Copyright extension act was thoroughly anti-innovation, but the Supreme Court disagreed; Mike and I both agree that punitive damages for copyright out of all proportion to actual harm are unconstitutional, and Jammie Thomas-Rasset's case is a great vehicle for "our" side to have a higher court decide this question). In short, intellectual property is not property like real property is. And don't forget -- you can't do anything with your property. There are all sorts of limits that are precisely the result of decisions about what's good for society as a whole (including, just to begin, zoning laws and environmental laws).

     

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  53.  
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    scott, Jul 2nd, 2009 @ 6:40pm

    Coming Through the Rye

    The book is titled: "60 Years Later: Coming Through the Rye". Apparently it is being sold on a site the sells mainly joke books, named "Nicotext". One would think that 'fair use' would protect this sort of satire, as it does countless other works. Mr. Salinger calls the book a "rip-off". I guess he feels his work should be exempt?

     

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  54.  
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    anonomous coward, Jul 3rd, 2009 @ 1:13pm

    Re: Re:

    I'm calling her a cunt and the copywrite laws as they are
    evolving bullshit!

     

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  55.  
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    Ron, Jul 5th, 2009 @ 6:10am

    Why is this a problem?

    It seems as though there is some belief that the original author's rights are trivial. I am not sure how many authors (including the writer of this report) would feel so generous as to relinquish rights to their creative property on a whim. Suppose I were to take this article and write a sequel to it, using different examples, of course, and in the end come up with what I feel is a piece that is good enough to sell to another editor... or news outlet. The original creativity and thought are what should be protected. You cannot simply to into a library and read a good book and decide that you are going to PUBLISH a sequel to it. If JD wants to write a personal sequel, then cool. But why is there a need to publish? I am quite sure that initially, before it reached legal levels, it was suggested that the offending similarities be changed.

     

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  56.  
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    MT, Aug 5th, 2009 @ 5:14am

    Um, the guy initially marketed it as a sequel

    I love how many people are ignoring that the guy initially tried to market this as a sequel to "Catcher in the Rye" and was very honest that he based his characters on the characters in CITR. As soon as he was caught, he started trying to tapdance and backtrack to say "Oh, no... it's not a sequel or based off of Salinger's work! It's um... INSPIRED by it! Yeah, that's the ticket!"

    This could all have been settled very quietly but the guy was the one who made it as nasty as it eventually got. He kept going to the court of public opinion hoping that we'd all side with him and that this publicity would get him sales, if not on this book then on the next one he writes.

    Now if the roles are reversed I bet that he'd be whining about how someone else did a knock off of his work. (Which is what this is- it's a knock off, not an original work.)

    If he really wanted his book to be read, why didn't he "accidentally" leak a copy to the internet for free? Then everyone could read his work & decide for themselves. It would have potentially gotten the public on his side and drummed up anticipation for his next book. Why didn't he? Because he would rather recieve money for his work than have it read. I'm not saying that people shouldn't get paid for their work, but some people do it more for the prestige and money than they do for the actual joy of having their stuff appreciated.

     

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  57.  
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    Anonymous Coward, Dec 24th, 2009 @ 10:10pm

    Re:

    "Why is this troubling? It goes to the heart of a derivitive work, which has always been covered by Copyright. You can't just take a bunch of characters from a existing novel and put them in your own novel, even if you change the names."

    So it infringes because the main character is a cynical asshole? That his 'friend'/roommate is a womanising dick? If that's the case then Salinger clearly infringes on my autobiography. I demand his book be pulled from print and he pay me massive damages!

     

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  58.  
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    William Moersen/Watson, Jan 14th, 2010 @ 12:57am

    copyright

    I think the publisher should have told the author whether the book would pass legal inspection. I would go ahead an write a sequel anyway. But I would never admit it was a sequel. I would just vaguely allude to very disguised charaters - maybe one - and that would be it - and my sequal would take place 50 years later. How could anyone prove that it was a sequel? If you looked hard enough, you could find a sequel to every book. It's all in the interpretation. The author should change his pen name and go around Robin Hood's barn and see what happens. Screw Salinger. Who does he think he is? He'll be dead by the time the sequel comes out anyway. HA

    Bill Moersen

     

    reply to this | link to this | view in thread ]


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