{"id":6581,"date":"2009-08-16T08:53:00","date_gmt":"2009-08-16T13:53:00","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=6581"},"modified":"2009-08-16T15:25:00","modified_gmt":"2009-08-16T20:25:00","slug":"caufield-meets-quixote","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2009\/08\/caufield-meets-quixote\/","title":{"rendered":"Caufield Meets Quixote"},"content":{"rendered":"

\"p003\"Last Thursday, a brief was filed with\u00a0the United States Court of Appeals for the Second Circuit in the case of Salinger v. Colting<\/a><\/em>.\u00a0 This lawsuit, alleging breach of copyright, has received a great deal of attention because the plaintiff is the reclusive author J.D. Salinger.\u00a0 He sued Swedish author Fredrik Colting in New York over the latter\u2019s book 60 Years Later: Coming Through the Rye<\/em>, a novel in which one character is a 76 year old Holden Caufield.\u00a0 United States District Judge Deborah Batts rejected Colting\u2019s argument that his use of the Holden Caufield character constituted a critical commentary on the Salinger novel The Catcher in the Rye<\/em>, and therefore fell within the “fair use” exception to\u00a0copyright infringement.\u00a0 She granted Salinger\u2019s request for a preliminary injunction preventing the publication of the work in the United States.\u00a0 Salinger’s\u00a0lawyers filed a brief<\/a> asking the Second Circuit to uphold Judge Batts’ order on August 13.<\/p>\n

Some observers of the case have focused on its unusual grant of the plaintiff’s request for an injunction — this is\u00a0a rare instance of U.S. law allowing a prior restraint on publication.\u00a0 Other observers have debated the intersection\u00a0of\u00a0First Amendment rights and copyright protections implicated by the lawsuit.\u00a0 In contrast, when I heard about the case, my thoughts turned to Don Quixote.<\/p>\n

\u00a0Through 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.\u00a0 In England, Shakespeare wrote plays that retold stories that had been told by other playwrights, and other authors in turn recycled Shakespeare\u2019s plots.\u00a0 Several different versions of Hamlet entertained Elizabethan audiences, although I believe that Shakespeare\u2019s is the only version that survives to our day.<\/p>\n

At the same time, in Spain, multiple authors were publishing books that detailed\u00a0the adventures of the same characters.\u00a0 Particularly popular were books about\u00a0Tirant Lo Blanch, a brave knight who\u00a0rescued fair maidens and battled horrible beasts.\u00a0 There was no legal concept of ownership of this\u00a0character in Spain, just as in England there was no concept that Shakespeare \u201cowned\u201d the character of Hamlet.<\/p>\n

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.\u00a0 It appears that copyright law was invented as a way of protecting the nascent printing industry.\u00a0 It originally provided no legal protection to authors at all.\u00a0 However, that would soon change.<\/p>\n

\u00a0The novel Don Quixote<\/em> was published in 1605 by Miguel Cervantes.\u00a0 It introduced two iconic\u00a0characters:\u00a0a comical old man, who thinks himself a chivalrous knight errant, and his humble sidekick Sancho Panza.\u00a0 It also slyly critiqued a social order in Spain that was dominated by both unproductive nobles and a repressive Catholic clergy.\u00a0 The book was a huge success, and ten years later, in 1615, Cervantes published Don Quixote Part Two<\/em> (thus proving that Hollywood did not invent the sequel).<\/p>\n

One of the most famous parts of Don Quixote Part Two<\/em> is its prologue, written in Cervantes\u2019 own voice, which contains a vicious attack on a certain Alonso Fernandez de Avellaneda.\u00a0 It seems that in the ten year interval between the publication of Parts One<\/em> and Two<\/em>, Avellaneda (which is probably a pseudonym) had published his own continuation of the adventures of Don Quixote and Sancho Panza.\u00a0 In his prologue to Part Two<\/em>, Cervantes insults Avellaneda without mercy, comparing him, for example, to a madman who commits imaginative and distasteful acts on the rear ends of dogs.<\/p>\n

\u00a0The brutality of Cervantes\u2019 verbal attack, and its literary quality, transformed Avellaneda\u2019s own version of Don Quixote into an obscure historical footnote, forgotten by all but the most determined students of Spanish literature.\u00a0 Ironically, a close reading of Avellaneda\u2019s much ridiculed work demonstrates that it has real literary merit in its own right (as discussed here <\/a>by my former Professor James Iffland of Boston University).\u00a0 In particular, Avellanda\u2019s 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. \u00a0<\/p>\n

Miguel Cervantes\u2019 written attack on Avellanda\u2019s use of his characters was unprecedented because it portrayed the derivative work as an intentional injury to the original author.\u00a0 Moreover, the severity of Cervantes\u2019 indignation suggested to the reading public that the harm Cervantes had suffered was very real.\u00a0 People began to think about the rights of authors to control the use of their characters in a different way.\u00a0 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.\u00a0 Thus was born modern copyright law.<\/p>\n

So what is wrong with giving authors the right to control the use of their characters?\u00a0 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\u00a0might diminish their\u00a0value.\u00a0 However, copyright law comes with an associated\u00a0cost.\u00a0 The fact that Colting\u2019s novel may never be published in the United States illustrates that cost.\u00a0 All of us\u00a0bear 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.<\/p>\n

It is true that some derivative uses of someone else\u2019s characters are allowed, notwithstanding copyright protection.\u00a0 Parodies and critical commentaries using established characters are permitted under the First Amendment.\u00a0 However, this seems like an almost arbitrary exception to the original creator\u2019s exclusive right to\u00a0control his characters.\u00a0 Other derivative uses of an established\u00a0character can enrich our common culture as much as a parody or a critical analysis.<\/p>\n

Why allow someone else to write a parody of The Catcher in the Rye,<\/em> but prohibit\u00a0a Holden Caufield sequel?\u00a0 The sequel\u00a0might\u00a0be puerile trash, but it just might be a masterpiece in its own right.\u00a0 Why not allow a third author to write a Holden Caufield opera?\u00a0 Or a ballet?\u00a0 I doubt that people would stop reading The Catcher in the Rye<\/em>.\u00a0 In fact, the sales of Salinger\u2019s novel might increase.<\/p>\n

One answer is that it is unfair for others to use Mr. Salinger\u2019s character in order to make a profit for themselves.\u00a0 But existing law allows some exceptions for parodies and critical commentaries that\u00a0can earn a profit for their authors.\u00a0 In addition, the law now extends the life of copyright protection beyond the life of the creator.\u00a0 In light of this fact, it is difficult to argue that the\u00a0protection of the creator\u2019s exclusive ability to enjoy the monetary benefits flowing from his creation is the primary concern of the law.\u00a0\u00a0<\/p>\n

Every act of creation should be viewed as a gift from one person to all people.\u00a0 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?\u00a0 Even if his gift is misused or abused by others, Salinger has no moral basis to complain.\u00a0 Arnold Weinstein, a professor of comparative literature at Brown University, was quoted as follows in a Wall Street Journal article<\/a>\u00a0about the case:<\/p>\n

\u00a0The concept of authorship as a controlling authority is intellectually bogus.\u00a0 Literature constantly reworks older things \u2013 authors send their characters out into the world.<\/p><\/blockquote>\n

It is only if we view the act of creation as a \u201csale\u201d 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.<\/p>\n

This is the crux of the problem.\u00a0 Over time, the existence of copyright law has commodified the act of creation.\u00a0 It is no coincidence that this process began in 1518 with the technological innovation of the printing press.\u00a0 The commodification process accelerates with each new technological advance.<\/p>\n

In our digital age, every consumer can purchase and enjoy a vast universe of cultural artifacts at the press of a button.\u00a0 However, rarely do we spend any of our time engaged in the act of creation itself.\u00a0 Most of us\u00a0spend little or no time each day\u00a0playing music, telling stories, or painting pictures.\u00a0 Why should we bother, when it is far more convenient to purchase the creations of others?\u00a0 The irony is that we are increasingly surrounded by our culture, but at the same time we are increasingly alienated from it.\u00a0 By treating the creative act as a commodity, copyright law has facilitated this trend.<\/p>\n

Today, our\u00a0children are\u00a0taught beginning in elementary school that it is illegal to use cartoon characters without first obtaining a license.\u00a0 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.\u00a0 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\u00a0effort to encourage teachers to adopt a curriculum that exposes our children to the fundamentals of copyright law.<\/p>\n

We have forgotten that our culture belongs to all of us.\u00a0 We mistakenly think of \u201cculture\u201d in historical terms, and confine it to dusty books and ancient musical recordings that have \u201caged out\u201d of copyright protection.\u00a0 In reality, a culture is how a civilization defines itself in the present day.\u00a0\u00a0We define\u00a0our place in our contemporary\u00a0world through stories, song and dance.<\/p>\n

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.\u00a0 We didn\u2019t always pay such a high price for our culture.\u00a0 The “fair use doctrine” once permitted a broad use of another author’s\u00a0creations so long as no monetary benefit was received.\u00a0 The initial success of Salinger’s lawsuit demonstrates how narrow the fair use doctrine has become.\u00a0 This exception to copyright protection has been under a sustained assault by copyright holders for decades.\u00a0 Like the western prairie before it, the \u201cpublic domain\u201d is slowly being fenced in and parceled out to the highest bidder.\u00a0\u00a0\u00a0\u00a0\u00a0<\/p>\n

It doesn\u2019t have to be this way.\u00a0 We should eliminate copyright protection for literary characters.\u00a0 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.\u00a0 Like Cervantes, Salinger can even include a vituperative attack on the upstart artist who has offended his creation.<\/p>\n

If the public sees no merit in Colting\u2019s creation, then Colting\u2019s book will soon be forgotten.\u00a0 However, let the rest of us decide for ourselves whether there is real merit in Colting\u2019s creation.\u00a0 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.<\/p>\n","protected":false},"excerpt":{"rendered":"

Last Thursday, a brief was filed with\u00a0the United States Court of Appeals for the Second Circuit in the case of Salinger v. Colting.\u00a0 This lawsuit, alleging breach of copyright, has received a great deal of attention because the plaintiff is the reclusive author J.D. Salinger.\u00a0 He sued Swedish author Fredrik Colting in New York over […]<\/p>\n","protected":false},"author":16,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"ocean_post_layout":"","ocean_both_sidebars_style":"","ocean_both_sidebars_content_width":0,"ocean_both_sidebars_sidebars_width":0,"ocean_sidebar":"","ocean_second_sidebar":"","ocean_disable_margins":"enable","ocean_add_body_class":"","ocean_shortcode_before_top_bar":"","ocean_shortcode_after_top_bar":"","ocean_shortcode_before_header":"","ocean_shortcode_after_header":"","ocean_has_shortcode":"","ocean_shortcode_after_title":"","ocean_shortcode_before_footer_widgets":"","ocean_shortcode_after_footer_widgets":"","ocean_shortcode_before_footer_bottom":"","ocean_shortcode_after_footer_bottom":"","ocean_display_top_bar":"default","ocean_display_header":"default","ocean_header_style":"","ocean_center_header_left_menu":"","ocean_custom_header_template":"","ocean_custom_logo":0,"ocean_custom_retina_logo":0,"ocean_custom_logo_max_width":0,"ocean_custom_logo_tablet_max_width":0,"ocean_custom_logo_mobile_max_width":0,"ocean_custom_logo_max_height":0,"ocean_custom_logo_tablet_max_height":0,"ocean_custom_logo_mobile_max_height":0,"ocean_header_custom_menu":"","ocean_menu_typo_font_family":"","ocean_menu_typo_font_subset":"","ocean_menu_typo_font_size":0,"ocean_menu_typo_font_size_tablet":0,"ocean_menu_typo_font_size_mobile":0,"ocean_menu_typo_font_size_unit":"px","ocean_menu_typo_font_weight":"","ocean_menu_typo_font_weight_tablet":"","ocean_menu_typo_font_weight_mobile":"","ocean_menu_typo_transform":"","ocean_menu_typo_transform_tablet":"","ocean_menu_typo_transform_mobile":"","ocean_menu_typo_line_height":0,"ocean_menu_typo_line_height_tablet":0,"ocean_menu_typo_line_height_mobile":0,"ocean_menu_typo_line_height_unit":"","ocean_menu_typo_spacing":0,"ocean_menu_typo_spacing_tablet":0,"ocean_menu_typo_spacing_mobile":0,"ocean_menu_typo_spacing_unit":"","ocean_menu_link_color":"","ocean_menu_link_color_hover":"","ocean_menu_link_color_active":"","ocean_menu_link_background":"","ocean_menu_link_hover_background":"","ocean_menu_link_active_background":"","ocean_menu_social_links_bg":"","ocean_menu_social_hover_links_bg":"","ocean_menu_social_links_color":"","ocean_menu_social_hover_links_color":"","ocean_disable_title":"default","ocean_disable_heading":"default","ocean_post_title":"","ocean_post_subheading":"","ocean_post_title_style":"","ocean_post_title_background_color":"","ocean_post_title_background":0,"ocean_post_title_bg_image_position":"","ocean_post_title_bg_image_attachment":"","ocean_post_title_bg_image_repeat":"","ocean_post_title_bg_image_size":"","ocean_post_title_height":0,"ocean_post_title_bg_overlay":0.5,"ocean_post_title_bg_overlay_color":"","ocean_disable_breadcrumbs":"default","ocean_breadcrumbs_color":"","ocean_breadcrumbs_separator_color":"","ocean_breadcrumbs_links_color":"","ocean_breadcrumbs_links_hover_color":"","ocean_display_footer_widgets":"default","ocean_display_footer_bottom":"default","ocean_custom_footer_template":"","ocean_post_oembed":"","ocean_post_self_hosted_media":"","ocean_post_video_embed":"","ocean_link_format":"","ocean_link_format_target":"self","ocean_quote_format":"","ocean_quote_format_link":"post","ocean_gallery_link_images":"on","ocean_gallery_id":[],"footnotes":""},"categories":[7,64,37],"tags":[],"class_list":["post-6581","post","type-post","status-publish","format-standard","hentry","category-intellectual-property-law","category-legal-history","category-popular-culture-and-law","entry"],"_links":{"self":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/6581","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/users\/16"}],"replies":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/comments?post=6581"}],"version-history":[{"count":0,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/6581\/revisions"}],"wp:attachment":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/media?parent=6581"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/categories?post=6581"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/tags?post=6581"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}