A sad day for fair use

Last week a U.S. district court judge issued a preliminary injunction against the publication of 60 Years Later: Coming Through the Rye, a book based on the idea of J.D. Salinger’s Holden Caufield character as a 76 year old man. Strong reactions to the ruling have come from many across the legal, literary and technology fields, for example Mike Madison, Jim Brown, and Mike Masnick.

My Media Musings delivers the bottom line, easily understood by all:

Seeing judges ban books is never a good thing. Seeing a judge ban a book for such flimsy reasons as this is downright frightening. If her ruling stands, expect to see a long line of similar suits in the near future.

Of course one way to take an affirmative stance for reasonable copyright (still strongly trending toward increasing unreasonableness, as evinced by the above) is to grant permission in advance for some uses of your work with a CC license or all uses with the CC0 waiver. Another is to support our work financially and spread the word.

10 thoughts on “A sad day for fair use”

  1. I think it’s obvious that Salinger wouldn’t have used CC on Catcher in the Rye and didn’t want his characters to be borrowed. If he was fine with others using his characters, he wouldn’t have come out of his hermit state to stop it, would he?

    Really, without reading it, can any of us say whether it leaned more toward using Little Red Riding Hood in a totally unrelated story or was a rip-off?

  2. Mackenzie: In my view, the real issue is intransigence on the part of copyright lawyers and lawsuits and the judges who “enforce” copyright law. We’re in a bizarre moment when public opinion and actions are more likely to trend toward creative appropriation (because of cheap software, increased access to source materials, increased access to platforms for widespread circulation) while corporations, lawyers, and lawmakers are digging their heels in and calling anything–even something like Coming Through the Rye which, even if it’s satirical and cruel, is still clearly a tribute to the original–a copyright violation.

    Indeed, if anything, this book would have led (and probably has already) to an increase in sales of Catcher in the Rye. The point at the end of the above article seems to be that if a writer values seeing her work circulated and appropriated, then she would do well to consider copyrighting with CC licenses.

  3. After receiving a cease and desist letter for marketing a book that moved from the public domain to owned, I can attest: the rights issues are far from concrete and standardized.

    Abuses can occur without even trying.

    There is an opportunity for legacy authors and prior rights holders to reinvigorate their legacy stories and brand through derivations of their characters; extensions of their plot; renewal of their titles with a twist.

    We can all win, if we’ll look at the big picture and provide decent recognition to past authors and their “prior art”.

    Just my take.
    Mark Alan Effinger

  4. Ironically, I think this might have been seen as less threatening if there were many such publications, as in fan fiction. Then it might be seen more as a tribute rather than a competing version of the character’s life. But fan fiction exists in a different sphere of distribution than the original work, normally. When I appropriate work, I try to create not just a new work, but one that does not exist in the same realm of distribution. For example, writing a book about a TV show character, sampling dialogue from a movie for a piece of music.

    While I am not in favor of this ruling, I can see why it could be seen as potentially more problematic due to the fact that it would be released into the same (or similar) sphere of distribution. However, one would hope that authors (and lawyers) would value free expression over their desire to limit uses of their characters.

  5. @Mackenzie: Issues of artistic borrowing aside, I think we should seriously ask ourselves if it’s all right for Salinger to still have 100% control over a work he created 58 years ago. Copyright law is so arbitrary, mainly thanks to Mickey Mouse(!), that if Salinger had written his book 28 years earlier, his work would be considered part of the public domain.

  6. Seriously why should he lose the copyright to what he has created?

    He put the time and effort into it, he wrote the book. Why should someone else be allowed to come along and take it over?

    The Author should have put time and effort into something of his own and not taken what was not his in the first place.

    I myself think that this is a great day for creators rights!

  7. this is a stupid ruling as it only applies to the US; the book is being listed on Amazon.com for sale. Should we expect border agents to make sure this work doesn’t get imported via dead-tree version, podcast on an Ipod or a PDF on your kindle? In this day and age there is no reasonable way to prohibit a work from being published. The issue for the case is the bad application of law by the judge by an evil lawyer working for an evil author. Copyright is not about royalties in perpetuity, total control of the work or characters, its about advancing the useful art at the cost of a temporary almost-monopoly. Anytime a work draws upon previous art, it is saying ‘please read the original (and possibly purchase it), I thought it was worthy, and compare my version to it and make up your own mind.” This creates an environment to advance ‘the useful arts’, stopping publication does not. The injunction does bring possibly undue attention to the new work and leads to a similar result: both works are compared (after reading (and possibly purchasing) them). So the injunction serves no purpose but the authors perverse desire for control.

    Mr. Raymond, there is no issue of Mr. Salinger ‘losing copyright’. The author did not reissue his work, or copy copious amounts of text from it; he used character from the original and made a commentary. This does not detract from anyones wish to read the original book and does not destroy anyones impression of the original characters.

    cburke,there is no special protection for using a portion of a work in a different medium. Writing a book about another book is not automatic grounds for an injunction and making a song using part of a work does not preclude getting an injunction.

  8. I was going to reply to Raymond as well, but I was not getting something worthwhile out.
    What I can say is that it’s a very, very sad decision, but one that will probably accelerate copyright revolution.

  9. Good thing Homer was dead and had no living greedy relatives when Joyce wrote Ulysses.

  10. Good thing there were no copyright laws in Homer’s day or he would have been in big trouble – his method of composition was one that orally cut and pasted large numbers of set pieces available to all the oral poets of his day.

    And is Coming through the Rye really available in the UK. I know it’s listed as “for sale” on amazon.uk, but a friend who went to a book shop in London was told it wasn’t and won’t be available.

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