It is thoroughly unbelievable news that US District Court Judge Deborah Batts has issued a permanent injunction against the US publication of a book that purports to update the story of Holden Caufield, the protagonist of J.D. Salinger’s “The Catcher in the Rye.” The new book, written by Swedish author Fredrik Colting and already published in Britain, is called “Sixty Years Later: Coming through the Rye” and is told by a 76-year-old man called Mr. C. There is little doubt that Mr. Colting is trying to ride the continuing popularity (which I personally have never understood) of “Catcher in the Rye” by creating a sequel. But there is a great deal of doubt about whether this is a copyright infringement. The portions of the decision I have been able to read suggest that Judge Batts got all of the major copyright issues involved completely wrong.
First there was the fair use argument. In a very similar case involving a retelling of the the story of “Gone With the Wind” from the point of view of one of the slaves at Tara, the Eleventh Circuit Court of Appeal correctly recognized that the new work was a fair use of material copied from “Gone with the Wind.” And in the recent decision finding that “The Harry Potter Lexicon” was not a fair use, Judge Robert Patterson, in the same judicial district as Judge Batts, went out of his way to make clear that an author of an original work cannot control all sequels, prequels and reference works. Judge Patterson even writes, citing other precedents in the Circuit, that “a work is not derivative, however, simply because it is “based upon” the preexisting work.” (p. 39) But that erroneous conclusion is exactly the foundation of Judge Batts’ decision.
Judge Batts seems to know only one fair use precedent — the “Oh Pretty Woman” case from the Supreme Court — and she applies it slavishly. Since she does not think that the new book is an actual parody of the original, she holds that it is an infringing derivative work. But it should be clear to anyone who is a federal district court judge that there are other kinds of fair use than parody; indeed, a quick read of section 107 itself would get one that far.
The real problem, however, is that this should not have been decided as a fair use issue. In the two cases cited above, there was a substantial amount of material that was actually copied from an original into the new work. In the case of the “Wind Done Gone,” specific dialogue was reproduced, with commentary and perspective from the “new” protagonist. In the case of “Coming Through the Rye,” there seems to be no evidence of actual expression that is copied in the sequel. Judge Batts focuses her objection on the conclusion that “Holden Caufield is delineated by words” and that therefore Holden is copyrighted. But this ignores the fundamental distinction between expression, which is protected by copyright, and ideas, which are not. All ideas are delineated by words, but that does not give the ideas themselves, even the idea of a solipsistic teenager who inevitably grows up, copyright protection. Even before she reads section 107, Judge Batts needs to read section 102(b) of the Copyright Act.
Indeed, her decision is so unaccountable that its leads this commentator at TechDirt to question whether there really is an idea/expression dichotomy in copyright law at all. But that dichotomy carries a lot of weight in US law; it is frequently cited, including by the Supreme Court, as one of the basic concepts (along with fair use) that keeps copyright law from becoming an infringement of free speech. Now that Judge Batts has read the distinction out of the law (or failed to read the law at all), the conflict with free speech becomes all too apparent, when a new book can be banned in the US because an old author doesn’t like it.
So what good can come from this ridiculous decision? First, it should be, and very likely will be, overturned on appeal. But more importantly, it should prompt Congress to look again at the exclusive right, granted in copyright law, to prepare derivative works. That right has not always been part of copyright; there was a time when even abridgments and translations were held not to infringe on an original. The pendulum has now swung the other way, and we grossly overprotect some original works from legitimate reuse because we think those new creations are derivative works. As is frequently pointed out, Shakespeare could not have written his plays under today’s copyright regime in the US. It is time for clearer definition of what is and, more importantly, what is not a derivative work that is entitled to protection. If outrage over Judge Batts’ decision can prompt such clarity, some good might come from this very bad ruling.
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For help deciding whether course content in Blackboard or some other digital form is fair use or requires copyright permission, consult this policy document adopted by the Academic Council in February 2008.
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