A sequel on Salinger

In a comment about my previous post concerning the decision to grant a preliminary injunction in the Salinger case, effectively banning US publication of a story about Holden Caulfield 6o years later, the writer took me to task, quite harshly but with some justification, for my cursory and sweeping denunciation of the decision.  My post implied, although I admitted at the time that I had not read the entire ruling, that the Judge’s decision was uninformed.  Now that I have read the opinion, I must admit that it is not uninformed, but wrong for several other, more subtle, reasons.

First, as I said originally, Judge Batts does not adequately address the idea/expression dichotomy built into copyright law in section 102(b).  She acknowledges the concept early on in the ruling, even citing it as one of the elements that reconciles copyright with the First Amendment, but then does not mention it again.  The result of this omission is that she never tries, in her analysis of the alleged similarities between “Catcher in the Rye” and “Forty Years Later” to distinguish protectable from non-protectable elements before making the comparison.  This is standard practice in the substantial similarity analysis, and its absence leads the Judge to cite some amazing things as evidence of copyright infringement, such as the fact that both characters are liars, both complain a lot, and both travel to NYC.

It is certainly true that one can infringe in ways other than verbatim copying, but one must still show substantial similarity with protected expression; it is not enough to say that the protagonist in Catcher is delineated in words and therefore any word picture that is similar, even merely because it uses similar ideas, must infringe. I am reminded of the case brought against Dan Brown for infringing the copyright in “Holy Blood, Holy Grail” with his “The Da Vinci Code.”  The basic idea in the two books is fundamentally the same, but the case was dismissed (in the UK) because the court separated out unprotectable ideas and then found no substantial similarity.  That should have been the procedure, and the outcome, in the Salinger case as well.

I think a good deal of the problem is that the Judge spends too much time on the discussion of whether or not the new work is a parody of the old.  Even when she turns to other transformative purposes in her analysis, the Judge never really moves past the parody issue, since she focuses entirely on the (critical) use of J.D. Salinger as a character in the new novel.  But there are many kinds of transformative uses beyond these two types (which are really not very different); the Judge needed to consider the broad range of purposes listed in section 107 as examples of fair use in order to evaluate the full scope of possible transformation.

A clue that there is a problem with the Salinger ruling is that Judge Batts finds pretty explicitly that no unauthorized sequels would ever be non-infringing, but she offers no guidance at all about where the line is between impermissible sequels and other types of work, such as reference works that describe and analyze characters, settings and plots.  Essentially, the exclusive right over derivative works has been allowed to swallow the idea/expression distinction that is really vital to American copyright law, and the Judge offers us no way to mitigate or reconcile that result.  In fact, she tries rather feebly to make something positive out of her error here by suggesting that the right to prevent a sequel might actually give an incentive to an author to write a novel, secure in the knowledge that they will have the last word about every thought or idea they express.  Even if one assumes lots of authors as unsocial and controlling as Salinger, this is not a recipe for promoting the arts, whatever the Judge tries to argue.

This severe limitation on future creativity points up the last problem I want to cite in the Salinger ruling, and in many ways it is the most damaging.  Even though it is part of the required findings for issuing a preliminary injunction, Judge Batts never considers the balance of hardships between the parties if she grants the injunction, nor does she weigh the public implications of this prior restraint of speech, except with this odd argument about incentivizing authors who cannot tolerate followers.  These considerations are not optional when ruling on a preliminary injunction, and their absence should lead to reversal at the appellate level.   But even more important than following the letter of the Federal Rules of Civil Procedure is recognizing that it is absolutely vital that the public interest be considered whenever a judge is considering a request to ban a book, lest he or she run roughshod over the Constitution they are sworn to uphold.

The real problem with this ruling is not that it is uninformed, but that it misses the forest (including the public interest) due to its nearly exclusive focus on one tree.

4 thoughts on “A sequel on Salinger”

  1. I thought this was a more fair, balanced critique of the opinion. Sorry if I got a little feisty on the previous comment.

    I would just note that it is not clear to me that the idea/expression dichotomy applies in the context of the third factor, which explicitly asks the judge to see “how much was taken.” Obviously, you can’t copyright all characters who are liars, or the idea of a character who lies. But that’s a little different than copyrighting a character who has all the traits a through m and experiences a plot with all the scenes n through z. The line between ideas and expressions doesn’t seem so clear to me, anyway.

    I do agree wholeheartedly with your point about the very hazy line between transformative works (that get fair use protection) and derivative works (which by definition do not). You should check out the 2nd circuit case Castle Rock, in which the Second Circuit wrestles with this very question, at one point somewhat ridiculously distinguishing between “transforming works” which are one kind of derivative work and “transformative works” which are not. I’m not kidding. Its kind of ridiculous, but that is what the statutes and Supreme Court precedents say. So I would just add that to the extent you disagree with the judge’s opinion (I agree the big criticism is on the big picture, which she may have partially missed) a lot of it may have more to do with the (very) ambigious and unhelpful state of the law.

  2. I certainly agree that the definition of derivative works has gotten out of hand and now causes a real problem of definition. Historically, the exclusive right over derivatives was intended to address things like abridgments and translations (its parallel in international treaties is often called a translation right). It has been expanded so greatly that it now conflicts with transformative fair uses and even works like “Sixty Years Later” that, in my opinion, are non-infringing and should not require a fair use defense.

    Unfortunately, I do not agree that the confused state of the law is really responsible for all that is wrong in this opinion, however. The more I study it and discuss it with others, the more inclined I am to return to my earlier opinion that Judge Batts’ use of precedent is arbitrary and capricious. With “Campbell,” she is far too deferential, holding that once she determined that the facts of “Campbell” do not apply to her case, the legal conclusion in “Campbell” — that the work was fair use — was not possible. She needed to do much more work than she did to reach any conclusion about fair use; the mere fact that one precedent didn’t apply on its facts should not have been dispossive.

    On the other hand, her approach to another Supreme Court precedent, “eBay v. MercExchange,” is far too dismissive. She comments that this case calls into question her blithe assumption of irreparable harm, but says it does not apply because it is a patent and not a copyright case. She does not even consider that, as a Supreme Court precedent that attempts to restrain automatic injunctions in intellectual property cases, she ought to at least examine its potential application.

    In short, the use of precedent in this decision indicates a failure to fully consider the application of the relevant law to the specific facts of the case. That is a much deeper problem than the mere, unarguable, fact that the law here is difficult and sometimes contradictory.

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