On Monday three major library associations, along with several other groups dedicated to supporting free expression and new creative work, filed a “friend of the court” brief in the appeal of the decision made in June to issue an injunction prohibiting the US publication of “Sixty Years Later: Coming Through the Rye,” a continuation of the story of Holden Caulfield that was begun in J.D. Salinger’s “Catcher in the Rye.” I wrote several times about the case last month, and had a small role in rounding up the “amici” who participated in the brief, but I read the final product for the first time last night. A couple of points struck me in the section of the brief addressing fair use that I would like to highlight. A discussion of the case, and the arguments presented by the library organizations, from Tony Falzone, the Counsel of Record on the brief, can be found here.
First, I was struck by the excellent arguments made about how vital fair use is to supporting new creation, especially in the realm of creative literature. As theologians (and Julie Andrews) have known for years, nothing comes from nothing, and the edifice of creative writing is always built on an extensive foundation. From Shakespeare to Leonard Bernstein, Charles Lamb to Stanley Fish, new authors and literary critics use the grist provided by earlier writers to feed their imaginative mills. In this context, the brief quotes a really amazing question from the judge who issued the injunction being challenged. During the hearing she asked, in response to the argument that “Sixty Years Later” offered readers a new way of looking at the now quite old story of “Catcher,” “do people need [the new] version in order to view the story differently? How about just reading it twice, or maybe five years later..” Of course, this is not how literature or literary criticism works. New works are never sui generis (not even Catcher in the Rye), and Judge Batts’ logic would deprive each new author of those giants upon whose shoulders, Issac Newton famously reminded us, we must all stand if we wish to see clearly. Salinger may not think of himself as such a giant (and I admit I do not either), but he still cannot be afforded the level of control over future works that he seeks and that the court erroneously granted to him.
The depth of the problem is illustrated by the other aspect of the brief that caught my attention. I had noted before that Judge Batts argues that some authors might actually have an additional incentive to write if they new that they would be protected from sequels and criticism; if they were assured, in effect, that they would have the last word regarding the characters, events and ideas about which they wrote. What I had not seen, but the brief points out, is that the Judge is here importing the concept of “moral rights” into US law. Many countries do recognize the moral rights of attribution and “integrity” — the right to protect a work from alteration. The United States does not recognize these rights, with one very limited exception, and restricts the copyright incentive to economic rewards. The District Court ignores this policy decision, presumably made to support the free expression of ideas that is necessary for a democratic society, in favor of serving the desire of a author from a previous decade to exercise extraordinary control over the future of the ideas and characters he published. As the brief points out, the is no logical endpoint to the reasoning evoked here; if an author were incentivized by protection from negative reviews or parodies, shouldn’t we forbid those as well? This is not how copyright works, because its fundamental purpose is to encourage new creativity, while the Judge’s reasoning would create a sterile world in which creative dialogue would be impossible.
One of the news reports about the filing of this brief carries the title College Libraries v. J.D. Salinger. It struck me as I read the brief how unfair that tile is. Librarians traditionally have great respect for authors, and libraries serve authorship by being places where the great ideas and expressions of the past are readily accessible to current writers and scholars. Unfortunately, it is Salinger’s efforts to use copyright to ban a new book that is incompatible with both the mission of libraries and the purpose of copyright law. Both libraries and copyright law support fundamental democratic values — free expression and the “marketplace of ideas” that asks each new intellectual creation to prove its worth by submitting to examination, criticism and even parody. Occasionally copyright is wielded as a weapon, as in this case, to try an insulate some author from that rough-and-tumble exchange of idea. When libraries oppose those efforts, they are calling both copyright law and authors in a democratic society to stay true to themselves.