More on Literary Characters and Copyright Law

CC_No_11_Don_Quixote3This blog has seen an extended discussion on the topic of literary characters and copyright law.  It began with my post here, discussing the ongoing court case brought by J.D. Salinger over the unauthorized use of his Holden Caulfield character from The Catcher in the Rye, (Salinger v. Colting) and using a comparison to the novel Don Quixote to argue that copyright protection for literary characters should be eliminated.  It was followed by Professor Bruce Boyden’s post here, defending the law’s grant of exclusive control over literary characters to the original author because it provides an economic incentive to the creative process.  Professor Gordon Hylton responded with a post here, supporting my argument against copyright protection for literary characters by pointing to the post-publication history of Edward Bellamy’s popular novel Looking Backward.  The discussion continued with Professor David Papke’s suggestion, in a post here, that the resolution of this debate may depend upon how we define what it means to be an “author,” and whether authorship is an individual act of creation or the collective act of an entire society.  Finally, Professor Rick Esenberg contributed this post, discussing the crucial role of the reader in attributing meaning to the text, and implicitly questioning the idea that any author can control how his creation is used.

 I would like to add to this discussion by sharing the comments of my brother, Jim Fallone, on the foregoing debate.  I am aware, of course, of the popular movie Adaptation, “co-written” by screenwriter Charlie Kaufman and his fictitious brother Donald.  In that movie, Charlie Kaufman takes the screenwriting process itself as the film’s subject, and plays with post-modern theories of authorship.  Let me assure you that, unlike Donald Kaufman, Jim Fallone is a real person.  Moreover, Jim Fallone has over 20 years of experience as an executive in the publishing industry, currently with Andrews McMeel Publishing in Kansas City, and is a published illustrator.  While this experience makes him dependent upon copyright law for his meal ticket, it also gives him some valuable insights into the creation and marketing of literary characters.

What follows, then, are the comments of Jim Fallone:

Ed, to begin with, you are fundamentally wrong (as is Professor Hylton).

It is true that The Catcher in the Rye can be viewed as art and as such can be viewed as a gift in the Lewis Hyde tradition.  However, there are moral and cultural value rules that separate a gift from usury, and that line of separation is not clearly defined and may vary from culture to culture. These rules are directly related to the broader context that exists within the society at the time.

When Cervantes wrote Don Quixote, authors of fictions and stories rarely got paid. It was the printer who tended to make the money, both by pirating printings of the original work as well and by commissioning and even writing many of the sequels to Quixote. You can argue that economically Cervantes was much like today’s blogger or fan fiction writer. The many fake sequels became viral marketing that built demand for the “official” sequel. This all helped to build Quixote awareness and to strengthen its brand.

But this is not the same context with which we view The Catcher in the Rye. This latter book is a successful and a real and viable commercial revenue generator. It is a business, and the livelihood of the author is directly dependent on the book’s own reputation as literature—as well as the mystery surrounding the author and his purposely limited output. Additionally the work was created as a commercial venture. It was intended as a commodity. It was created and sold for a price and intended to be resold for a price to the general public.

Cervantes we see today as an artist who created something new and who never received much money or benefit from it.  However, at the time of his book’s creation that is what he desperately sought.  Don Quixote was immensely successful but, because there were no laws to protect Cervantes, everyone but the author cashed in (both on the original and its varied unauthorized sequels). Don Quixote’s value as literature as we understand it today was only achieved after the author’s death. During his lifetime, it was viewed as the literary equivalent of Harry Potter, making the author’s poverty all the more tragic.

Professor Hylton chose Edward Bellamy’s 1888 Utopian novel Looking Backward, 2000-1887 to focus his comparison on. His first mistake was using a Utopian novel — there are no good Utopian novels unless you count books like 1984, Fahrenheit 451, and Brave New World which are about how there are no good utopias. Secondly Bellamy’s book was a parable for a political and philosophical movement. Each sequel was addressing the socialist model which was the protagonist. The characters and back story of the book were less than secondary and little more than clip art on a PowerPoint presentation. The very nature of the book was to prompt philosophical discourse on the author’s political views.

Looking Backward was successful. It made the author wealthy and had a measurable value as a commodity, but much of the author’s revenue actually came from the lecture circuit. The failure here is that there was no real intellectual property of value. The main character of the book– Julian West– held no exploitable value and the only character of any value was Bellamy’s socialist model. Bellamy was not Edgar Rice Burroughs, and the possibility of writing Julian West’s Adventures on Mars was not jeopardized by another author beating Bellamy to the punch. There would never be Julian West action figures. The cardboard characters of Looking Backward were proxies for the reader to observe the author’s socialist utopia. The character was merely a device.

In the case of Salinger– again looking beyond the words on the page– a significant reason for the work’s reputation and value as art is precisely the unusual absence of further exploration and exploitation. The mystery surrounding the reclusive author and the unknown future of Holden Caulfield are part of the whole that is The Catcher in the Rye. The value of the novel’s theme of a boy’s alienation and angst about the future are all the more poignant and urgent precisely because we don’t know what becomes of him. This allows us all to identify with Holden and use him as a prism for our own awkward adolescence.

The Catcher in the Rye should be considered a great work of literature and art in the same sense that Quixote is art, but the context when it was published and the marketplace and nature of intellectual property at the time of its publication make all of the difference. Salinger’s work is great literature, but it is also incredibly successful and it generates significant income for both the author and the publisher. Unlike Looking Backward, the measure of value inherent in the property and characters of The Catcher in the Rye are in part derived from the rarity of its exploitation and the intentionally unknown future of the main character Holden Caulfield.

Holden has become a recognizable likeness much like Batman, Homer Simpson, Harry Potter or Luke Skywalker. Permitting works by any other author that created an unauthorized canon to the world that Salinger created in The Catcher in the Rye would be the equivalent of writing a sequel to Star Wars in which Luke has a previously unknown bastard child with Leia, who subsequently becomes a fat alcoholic fascist ruler of the Empire and dooms the rebels to continued mediocrity for generations. There is no way that LucasFilm would allow their carefully created and detailed universe to be devalued, thereby jeopardizing the reputation of its brand.

This value goes beyond the movies to the action figures and lunch boxes. Both the massive world of Star Wars and the tight and reclusive world of The Catcher in the Rye rely upon the integrity of their vision and on the property’s reputation and myth for a major portion of their value. It’s not just telling a new story about Luke that is at issue, it is the creation of new characters and their designation as Star Wars characters. In the current context of publishing and retailing, it damages The Catcher in the Rye’s potential place in school adoption programs across the country if we permit others to add to the canon or to create confusion as to what should be in the canon.

The current system of publishing allows the good to rise and to be licensed and exploited to its fullest.  The bad will go out of print, where the rights will revert and eventually become public domain. Try to find Looking Backward in any Barnes & Noble book store today. The author made lots of money and the book was a bestseller, but most of the general public today couldn’t tell you who Edward Bellamy was.  Four hundred years from now, The Catcher in the Rye will still be considered a classic and taught alongside Don Quixote.  Allow Salinger the protection to insure that he receives the compensation for his work that Cervantes never had. Once Salinger has been dead long enough, and only then, the work will revert to public domain.

Until the current publishing model ceases to exist (and if you look at the music industry, it may not be long) there is no need to change what has worked just fine. No great work of creation is being inhibited or restrained by the copyright laws. The author of a sequel to The Catcher in the Rye had only monetary gain as a goal. If he has some great scholarly or critical contribution to make, there already exist fair use precedents that adequately allow for his ideas to be communicated. The desire to communicate these ideas as an organic continuation of Salinger’s work is the basest form of usury and as far removed from a gift as one can get.

This Post Has One Comment

  1. Charlie Perry

    I agree with your brother’s general premise. If I were to write a song telling exactly what it was Mama Pajama saw in Paul Simon’s “Me and Julio Down by the Schoolyard” song, it would be wrong. Mr. Simon still makes money on that mystery. But I disagree with the statement “No great work of creation is being inhibited or restrained by the copyright laws.” The public domain is like a pack of field ice – stuck at 1923 – copyright bound and stiffing the arts. Reform is needed.

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