The Windmill’s Reply

Abandoned Mill of SaintesEd Fallone’s fascinating post below on the Catcher in the Rye suit, now being briefed in the Second Circuit, is worth reading. I was particularly interested in Ed’s discussion of Cervantes’s criticism of an unauthorized sequel to Don Quixote. Copyright scholarship occasionally mentions that Cervantes rushed Part II of Don Quixote into print because of pressure from a competitor, but I hadn’t heard the details before. Cervantes’s reaction to the implicitly critical sequel does seem like an important moment in the development of the idea of the fictional author as master of his or her creation.

However, I also want to offer a contrary view on a couple of points that Ed raises. First, Ed concludes that copyright’s commercialization of creative works is a problem. One solution, Ed proposes, is to eliminate copyright protection for literary characters. I disagree with both sides of this equation. There’s an emerging problem with copyright law, but it’s not commercialization of creativity. Commercialization of creativity is the entire reason copyright law exists. And eliminating copyright protection for sequels across the board would create far more problems than it would solve.

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Caufield Meets Quixote

p003Last 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.

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