Last Thursday, a brief was filed with the United States Court of Appeals for the Second Circuit in the case of Salinger v. Colting.  This lawsuit, alleging breach of copyright, has received a great deal of attention because the plaintiff is the reclusive author J.D. Salinger.  He sued Swedish author Fredrik Colting in New York over the latter’s book 60 Years Later: Coming Through the Rye, a novel in which one character is a 76 year old Holden Caufield.  United States District Judge Deborah Batts rejected Colting’s argument that his use of the Holden Caufield character constituted a critical commentary on the Salinger novel The Catcher in the Rye, and therefore fell within the “fair use” exception to copyright infringement.  She granted Salinger’s request for a preliminary injunction preventing the publication of the work in the United States.  Salinger’s lawyers filed a brief asking the Second Circuit to uphold Judge Batts’ order on August 13.

Some observers of the case have focused on its unusual grant of the plaintiff’s request for an injunction — this is a rare instance of U.S. law allowing a prior restraint on publication.  Other observers have debated the intersection of First Amendment rights and copyright protections implicated by the lawsuit.  In contrast, when I heard about the case, my thoughts turned to Don Quixote.

 Through end of the sixteenth century and into the beginning of the seventeenth century, the appropriation of characters and plots from earlier authors was a common literary practice.  In England, Shakespeare wrote plays that retold stories that had been told by other playwrights, and other authors in turn recycled Shakespeare’s plots.  Several different versions of Hamlet entertained Elizabethan audiences, although I believe that Shakespeare’s is the only version that survives to our day.

At the same time, in Spain, multiple authors were publishing books that detailed the adventures of the same characters.  Particularly popular were books about Tirant Lo Blanch, a brave knight who rescued fair maidens and battled horrible beasts.  There was no legal concept of ownership of this character in Spain, just as in England there was no concept that Shakespeare “owned” the character of Hamlet.

The first copyright laws date only to 1518, and they took the form of a monopoly that granted exclusive rights to a printer to publish a particular text.  It appears that copyright law was invented as a way of protecting the nascent printing industry.  It originally provided no legal protection to authors at all.  However, that would soon change.

 The novel Don Quixote was published in 1605 by Miguel Cervantes.  It introduced two iconic characters: a comical old man, who thinks himself a chivalrous knight errant, and his humble sidekick Sancho Panza.  It also slyly critiqued a social order in Spain that was dominated by both unproductive nobles and a repressive Catholic clergy.  The book was a huge success, and ten years later, in 1615, Cervantes published Don Quixote Part Two (thus proving that Hollywood did not invent the sequel).

One of the most famous parts of Don Quixote Part Two is its prologue, written in Cervantes’ own voice, which contains a vicious attack on a certain Alonso Fernandez de Avellaneda.  It seems that in the ten year interval between the publication of Parts One and Two, Avellaneda (which is probably a pseudonym) had published his own continuation of the adventures of Don Quixote and Sancho Panza.  In his prologue to Part Two, Cervantes insults Avellaneda without mercy, comparing him, for example, to a madman who commits imaginative and distasteful acts on the rear ends of dogs.

 The brutality of Cervantes’ verbal attack, and its literary quality, transformed Avellaneda’s own version of Don Quixote into an obscure historical footnote, forgotten by all but the most determined students of Spanish literature.  Ironically, a close reading of Avellaneda’s much ridiculed work demonstrates that it has real literary merit in its own right (as discussed here by my former Professor James Iffland of Boston University).  In particular, Avellanda’s version patronizes the character of Don Quixote and treats him as clearly insane, thus impliedly rehabilitating the portrayal of the existing social order in the first book and defending it from a damaging critic.  

Miguel Cervantes’ written attack on Avellanda’s use of his characters was unprecedented because it portrayed the derivative work as an intentional injury to the original author.  Moreover, the severity of Cervantes’ indignation suggested to the reading public that the harm Cervantes had suffered was very real.  People began to think about the rights of authors to control the use of their characters in a different way.  In 1709, the Statute of (Queen) Anne for the first time gave authors a legal monopoly on the reproduction of their work for a set period of years.  Thus was born modern copyright law.

So what is wrong with giving authors the right to control the use of their characters?  Copyright law is intended to provide an economic reward to the original creator, by granting him the legal right to prevent the use of his characters in ways that might diminish their value.  However, copyright law comes with an associated cost.  The fact that Colting’s novel may never be published in the United States illustrates that cost.  All of us bear the opportunity cost of all the derivative acts of creation that will never take place as a result of granting copyright protection to the original author.

It is true that some derivative uses of someone else’s characters are allowed, notwithstanding copyright protection.  Parodies and critical commentaries using established characters are permitted under the First Amendment.  However, this seems like an almost arbitrary exception to the original creator’s exclusive right to control his characters.  Other derivative uses of an established character can enrich our common culture as much as a parody or a critical analysis.

Why allow someone else to write a parody of The Catcher in the Rye, but prohibit a Holden Caufield sequel?  The sequel might be puerile trash, but it just might be a masterpiece in its own right.  Why not allow a third author to write a Holden Caufield opera?  Or a ballet?  I doubt that people would stop reading The Catcher in the Rye.  In fact, the sales of Salinger’s novel might increase.

One answer is that it is unfair for others to use Mr. Salinger’s character in order to make a profit for themselves.  But existing law allows some exceptions for parodies and critical commentaries that can earn a profit for their authors.  In addition, the law now extends the life of copyright protection beyond the life of the creator.  In light of this fact, it is difficult to argue that the protection of the creator’s exclusive ability to enjoy the monetary benefits flowing from his creation is the primary concern of the law.  

Every act of creation should be viewed as a gift from one person to all people.  Should J.D. Salinger have the right to gift our culture with an iconic character, and at the same time claim the ability to dictate how this gift can be used?  Even if his gift is misused or abused by others, Salinger has no moral basis to complain.  Arnold Weinstein, a professor of comparative literature at Brown University, was quoted as follows in a Wall Street Journal article about the case:

 The concept of authorship as a controlling authority is intellectually bogus.  Literature constantly reworks older things – authors send their characters out into the world.

It is only if we view the act of creation as a “sale” from the author to the rest of us that it makes sense to allow the author to place conditions on the use of his creation.

This is the crux of the problem.  Over time, the existence of copyright law has commodified the act of creation.  It is no coincidence that this process began in 1518 with the technological innovation of the printing press.  The commodification process accelerates with each new technological advance.

In our digital age, every consumer can purchase and enjoy a vast universe of cultural artifacts at the press of a button.  However, rarely do we spend any of our time engaged in the act of creation itself.  Most of us spend little or no time each day playing music, telling stories, or painting pictures.  Why should we bother, when it is far more convenient to purchase the creations of others?  The irony is that we are increasingly surrounded by our culture, but at the same time we are increasingly alienated from it.  By treating the creative act as a commodity, copyright law has facilitated this trend.

Today, our children are taught beginning in elementary school that it is illegal to use cartoon characters without first obtaining a license.  When my son was in first grade, I had to assure him that it was not against the law for him to draw pictures of Spider Man with his crayons.  I have no doubt that the holders of copyright in our country, the large media corporations that benefit from the commodification process, are behind the effort to encourage teachers to adopt a curriculum that exposes our children to the fundamentals of copyright law.

We have forgotten that our culture belongs to all of us.  We mistakenly think of “culture” in historical terms, and confine it to dusty books and ancient musical recordings that have “aged out” of copyright protection.  In reality, a culture is how a civilization defines itself in the present day.  We define our place in our contemporary world through stories, song and dance.

The key to profit in a service economy is to convince the public to pay for something that they used to expect to get for free.  We didn’t always pay such a high price for our culture.  The “fair use doctrine” once permitted a broad use of another author’s creations so long as no monetary benefit was received.  The initial success of Salinger’s lawsuit demonstrates how narrow the fair use doctrine has become.  This exception to copyright protection has been under a sustained assault by copyright holders for decades.  Like the western prairie before it, the “public domain” is slowly being fenced in and parceled out to the highest bidder.     

It doesn’t have to be this way.  We should eliminate copyright protection for literary characters.  If J.D. Salinger feels that his beloved character has been ill treated by others, then he can always respond in the same way as Miquel Cervantes: he can publish his own sequel.  Like Cervantes, Salinger can even include a vituperative attack on the upstart artist who has offended his creation.

If the public sees no merit in Colting’s creation, then Colting’s book will soon be forgotten.  However, let the rest of us decide for ourselves whether there is real merit in Colting’s creation.  Copyright law, as it is now structured, allows one artist to deny each and every one of us the possibility of other worthy works of art.