J.D. Salinger’s battle against free expression

J.D. Salinger, who died Wednesday at the age of 91, spent the last year of his life waging a wrong-headed battle against the fair-use exemption to copyright law, which allows for the use of copyrighted materials without permission under certain limited circumstances.

A Swedish humorist who goes by the name of J.D. California wrote a sequel to Salinger’s most famous work, “The Catcher in the Rye,” called “60 Years Later: Coming Through the Rye.” Salinger sued for copyright violation, even though parody is protected by fair use.

Last summer I gave Salinger a Boston Phoenix Muzzle Award for this outrage against free speech. I am, of course, under no illusions that Salinger ever knew or cared. What’s more disturbing is that the courts held up publication of “60 Years Later,” and that the case is still pending.

Let’s hope Salinger’s heirs drop the suit.

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23 thoughts on “J.D. Salinger’s battle against free expression

  1. Harrybosch

    Of course I haven’t read the book, but it is my understanding that “60 Years Later” was in no way a parody, but a full-fledged sequel to Salinger’s book.

    You do not have the right to appropriate another person’s property, intellectual or otherwise.

  2. mike_b1

    Imagine if Shakespeare wanted permanent rights to his works? Sheesh, we could whittle the study of English literature down to a semester.

  3. mike_b1

    Harry, consider how dramatically Congress has changed IP rights over the past 50 years, much due to intense lobbying by one Rep. Sonny Bono (R-CA), who had a huge financial stake in the matter. The framers’ intent was hardly to ensure an income for some kid a million years after “I Got You Babe.”

    Thankfully, there are trees in Reno.

  4. Harrybosch

    “Harry, consider how dramatically Congress has changed IP rights over the past 50 years . . .”

    Don’t care. If Salinger wanted to authorize a sequel to his work (or write one himself) then he would have.

    Good news for hacks, though! Seventy years from yesterday, folks are welcome to rip-off Salinger to their hearts content.

  5. NEWSHOUND

    Holden Caulfield had a great life living a little nutty and reclusive at times off the royalties of his tremendously great book. It’s a masterpiece, perhaps the reason we never heard directly from Mr. Caulfield again as he moved into older age in fear his own sequel would not live up to the original.

  6. mike_b1

    Harry, ever consider that Salinger himself owes a debt to those before him? It’s not like he invented the first-person narrative.

    You are taking a very narrow view here.

  7. Harrybosch

    “Harry, ever consider that Salinger himself owes a debt to those before him? It’s not like he invented the first-person narrative.

    You are taking a very narrow view here.”

    What does that have to do with anything?

    Folks are welcome to write and create and invent anything they want. They can parody the hell out of Salinger’s work, and excerpt bits and pieces of it for educational or news purposes.

    What they cannot do is build upon his world, for another seventy years or so.

    No, the narrow bit is Salinger’s creation. The rest of the pie are things available for other people to create. The whole wide world, in fact. Just not Salingers sliver of it.

  8. sheldon toplitt

    Colting originally flogged “60 Years Later” as a sequel to “Catcher” and only when Salinger sought a preliminary injunction against its release in the US did he characterize the work as “parody” and “literary criticism” in an attempt to declaw Salinger’s copyright infringement claim. Judge Batts didn’t buy it, finding that Colting borrowed wholesale “substantively and stylistically” from Salinger’s work. Salinger may not have been our most fuzzy & cuddly American literary icon, but he held a legally enforceable copyright and was entitled to protect his creation, just as Rolex has a right to do battle against the knock-off “Rolex” watches sold on Manhattan street corners. If anyone believes he or she is being deprived of the opportunity to read the next great writer, then that person should order “John David California”‘s masterwork through Amazon U.K. as the book is on sale in England.

  9. mike_b1

    Harry, what the Framers intended, and I agree with, is that innovation takes many forms. And protecting works for such extraordinary periods of time stifles innovation.

  10. Harrybosch

    “And protecting works for such extraordinary periods of time stifles innovation.”

    Spoken like one who has no intellectual property to protect. But I got no problem with fifty years after the death of the author. Or thirty. Or twenty.

    What do you suggest?

    Curious too if you also believe other types of property should become “public domain” after a certain period of time?

    For example, I got a friend who has a summer house off the coast of Maine. Been in his family for generations.

    How long should that property remain in his family, before it too becomes public property? Maybe a park of some sort?

    Or do people (and heirs) have more rights to some property and not others?

    Just curious.

  11. mike_b1

    “Spoken like one who has no intellectual property to protect. But I got no problem with fifty years after the death of the author. Or thirty. Or twenty.

    “What do you suggest?”

    Geez, Harry, you haven’t learned yet that you can’t insult me? Obviously, you don’t have a problem with those lengths of time, seeing as how the actual law you have defended is substantially longer than that. But again, it’s explicitly NOT what the Framers had in mind. And I don’t feel that that Salinger created anything novel except the order in which he wrote his words — and you can’t possibly prove otherwise. He didn’t create the novel; that was Richardson’s doing more than two centuries earlier. He didn’t create the first-person narrative. He didn’t create stream of consciousness. So really, what was new and unique and therefore worth protecting?

    Second, you want to compare physical assets — which are already covered by other laws — and intellectual property. They are two very different things, both in law and in every other form of consideration. I’m surprised you would make such an outlandish connection.

  12. lkcape

    Unfortunately, Mr. B-1, what the authors of he Constituation intended has little relevance to the Constitution and law as it is written.

    It is what is on the parchment that governs, not what is in the thought balloon.

  13. Harrybosch

    “But again, it’s explicitly NOT what the Framers had in mind.”

    Ya know, with all due respect to the framers, the nation they were creating was the foremost copyright violater in the world at the time, the veritable China of its day, and they knew it and wanted to protect what was one of the new nations growing industries.

    “And I don’t feel that that Salinger created anything novel except the order in which he wrote his words”

    Then what are we arguing about? If it is so unimportant, why would anyone want to rip it off?

    “I’m surprised you would make such an outlandish connection.”

    And I’m not surprised you couldn’t counter it. Property is property.

    At any rate, the world will have to wait a little longer for the porno version of “The Catcher in the Rye,” or t-shirts showing Mickey Mouse fornicating with barnyard animals, and all the other “innovations” that you are really defending with your words.

    1. Dan Kennedy Post author

      Harrybosch: Glad you brought up Mickey Mouse. An excellent example. Mickey Mouse’s debut, in “Steamboat Willie,” was a mashup of several things that had come before. If copyright law were as onerous then as it is today, Disney never could have gotten off the ground.

  14. Harrybosch

    “Mickey Mouse’s debut, in “Steamboat Willie,” was a mashup of several things that had come before.”

    Everything is a “mash up” of several things that have come before, and ideally these things come together to create something “new,” something . . . novel.

    But suppose that copyright then were as onerous as it is now. Then the company that made “Micky Mouse” would certainly have had a claim against Disney, and perhaps they would have become what Disney became.

    Look, I’ve already implicity stated that I recognize society benefits from reasonable copyright lengths and laws, and there is no doubt that the Sonny Bono / Mickey Mouse thing was only to protect entrenched corporate interests.

    So again, let’s settle on twenty-years or something reasonable before people can rip-off Salinger. Maybe forty.

    Why shouldn’t his heirs also benefit from his creation, just as my friend continues to benefit from his grandfather’s prudent decision to buy a beach house in 1870.

    1. Dan Kennedy Post author

      Harry: Copyright law was never conceived as a way to protect the creator for so many years after his death. “Catcher in the Rye” was published in 1951. If the old 28-year standard had prevailed, it would have been fair game starting in 1979. You suggest 40 years. OK, 1991. This notion of copyright-in-perpetuity is not even remotely what the framers of the Constitution had in mind. And even aside from the length of copyright, there is a strong argument to be made that the J.D. California work is “”transformative” under fair use. The legal definition of parody bears as much resemblance to real-life parody as the legal definition of insanity does to real-world mental illness.

  15. mike_b1

    @Harry,

    Copyright protection is in the eye of the lawmaker. But even you must acknowledge that today’s IP laws were written at the behest of a single legislator who was trying to protect his own royalties. That’s a conflict of interest if ever there were one.

    Second, the “importance” of a work has no bearing on whether it is protected. Why would you even bring that up?

    Finally, you should take a look at what the Framers had in mind. The laws weren’t written to provide legal cover for international appropriations. In fact, they were based on English law (the conceit is known as “14 + 14″). That model worked for nearly 200 years. The current law came only after a so-called inventor was elected to Congress and set out to rewrite the laws in order to grab as much cash as he could. That’s corruption of the lowest order. Your stance comes across as though you think permanent protection is as natural as oxygen. It’s silly.

  16. Harrybosch

    @mike: “Second, the “importance” of a work has no bearing on whether it is protected. Why would you even bring that up?”

    Hilarious. You read only those words that you want to.

    And we’re just talking past each other now.

    @Dan: “Copyright law was never conceived as a way to protect the creator for so many years after his death.”

    Concepts evolve, as has copyright.

    “If the old 28-year standard had prevailed, it would have been fair game starting in 1979. You suggest 40 years. OK, 1991.”

    Common ground, at last.

    “This notion of copyright-in-perpetuity is not even remotely what the framers of the Constitution had in mind.”

    You are now just exaggerating for effect, but I understand your point.

    And I’ve already discussed my thoughts on the framers and why they made copyright law the way they did.

    “Lots of stuff about J.D. California”

    J.D. California is welcome to write a book about an old man who used to be a selfish puke, who went to private school, and who once thought everyone was a phony.

    He just can’t call him Holden Caulfield.

    (Course then, nobody would read it.)

    At any rate, I detest “The Catcher in the Rye” (came to it too late) and no longer wish to defend it.

    But it’s been fun!

  17. mike_b1

    @Harry, I think your comparison of physical property (in this case, land) and intellectual property (a written idea) is unusual, not to mention irrelevant. I can’t think of a single instance of the USPTO issuing a patent for a beach house.

  18. Newshound

    That might mean that anyone who has ideas about how Holden Caulfield lived out his life it is best they keep their thoughts to themselves as it could violate copyright law.

    Or, is there a time when Holden is actually in the public domain?

  19. Harrybosch

    “@Harry, I think your comparison of physical property (in this case, land) and intellectual property (a written idea) is unusual, not to mention irrelevant.”

    And yet, you have yet to provide a cogent argument against it, but have mentioned it twice.

    Perhaps at the very least, I’ve got you thinking about it.

    “I can’t think of a single instance of the USPTO issuing a patent for a beach house.”

    Curious you’d mention patents (which are indeed irrelevant to the discussion) and yet, are a warehouse of protected, written ideas.

    At any rate, I’m done. Been fun!

    Off to Amazon to buy one of J.D. California’s non-copyright infringing trivia books.

  20. mike_b1

    I haven’t provided a cogent argument against it? Why would I need to? There’s 200 years of US legal history on my side.

    I’m not an attorney, but I know copyright law generally includes service marks, trade marks, patents and a host of other things. But what it appears you want to do is assign the strict definition of one form of property to another form of property when, in the eyes of the legislature and the courts, they are entirely different. Except, apparently, to you. Good luck with all that.

  21. Stella

    All of us who have published know the warm feeling we harbor for our words, Salinger more than most. Perhaps with reason. “Catcher” is a unique and valuable property.

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