Doesn’t art require the use of symbols that resonate with the culture? J.D. Salinger and his “ownership” of Holden Caulfield compared to Shakespeare and his theft of King Lear.

I may be a minority, but I find it odd to think a literary character, rather than the work he appears in, can be copyrighted. Nonetheless, the judge hearing J.D. Salinger’s lawsuit seeking to block publication of 60 Years Later: Coming Through the Rye apparently thinks Holden Caulfield is “a portrait by words.” Funny, I might think of Catcher in the Rye as analogous to a painting, but the character himself?

Holden Caulfield is a cultural icon of adolescent alienation (or at least was at one time). Can no creative work employ him as a symbol with resonance for an entire generation without J.D. Salinger’s permission (that, by all appearances, he would never grant)?

A lot of great art would never have been created if that were the case. Thinking these thoughts, I came across this, from Groklaw (via techdirt):

I was goofing off, looking up some information on Wikipedia on King Lear, and here’s what struck me. If the current US Copyright Law had been in effect over Shakespeare, I think he could have been sued by many authors for copyright infringement for writing that masterpiece.

Count how many lawsuits there could have been just for King Lear alone:

Shakespeare’s play is based on various accounts of the semi-legendary Celtic mythological figure Lear/Lir. Shakespeare’s most important source is thought to be the second edition of The Chronicles of England, Scotlande, and Irelande by Raphael Holinshed, published in 1587. Holinshed himself found the story in the earlier Historia Regum Britanniae by Geoffrey of Monmouth, which was written in the 12th century. Edmund Spenser’s The Faerie Queene, published 1590, also contains a character named Cordelia, who also dies from hanging, as in King Lear.

Other possible sources are A Mirror for Magistrates (1574), by John Higgins; The Malcontent (1604), by John Marston; The London Prodigal (1605); Arcadia (1580-1590), by Sir Philip Sidney, from which Shakespeare took the main outline of the Gloucester subplot; Montaigne’s Essays, which were translated into English by John Florio in 1603; An Historical Description of Iland of Britaine, by William Harrison; Remaines Concerning Britaine, by William Camden (1606); Albion’s England, by William Warner, (1589); and A Declaration of egregious Popish Impostures, by Samuel Harsnett (1603), which provided some of the language used by Edgar while he feigns madness. King Lear is also a literary variant of a common fairy tale, in which a father rejects his youngest daughter for a statement of her love that does not please him.

The source of the subplot involving Gloucester, Edgar, and Edmund is a tale in Philip Sidney’s Countess of Pembroke’s Arcadia, with a blind Paphlagonian king and his two sons, Leonatus and Plexitrus.

How many lawsuits do you see? At least a half dozen? I even see some methods and concepts claims, if we view it with modern copyright owner eyes. Remember J.K. Rowling’s litigation over methods and concepts that Darl McBride and Chris Sontag cited? I suppose he could have raised a transformational fair use claim. But what if he accessed the prior works in digital format? Does fair use exist there? Or maybe they’d have been DRM’d. He’d maybe then never have read them.

Of course, what really would have happened is there never would have been a King Lear written. It would have been too legally risky. You can go to jail for copyright infringement, after all, even if you are noncommercial, if you distribute a DVD, and if we are imagining, let’s imagine Shakespeare did that. Shakespeare wasn’t even noncommercial. And there are criminal sanctions under regular Copyright Law, too.

If Shakespeare had plenty of money, he could have contacted all the copyright owners and paid them whatever they asked, but if he didn’t have enough money, the result would have been he would have been unable to afford to write King Lear. Do we want a world where Shakespeare can only write King Lear if he has money? If you think I exaggerate, remember what happened to internet radio? And if one song is worth $80,000, is the sky not the limit, if you are a copyright owner and hold all the legal cards and can get Congress to keep upping the ante to suit you?

I don’t think J.D. Salinger should own Holden Caulfield. But I think Mickey Mouse belongs to all of the world too, so what do I know?

One must ask: should J.D. Salinger have the exlusive right to profit commercially from stories that include Holden Caulfield? He certainly has the right to block publication of his own letters. The author of a letter owns the copyright in the letter’s contents. But he doesn’t own the letter. So when Joyce Maynard, who was 18 when the 52 year old Salinger started a relationship with her, put up for auction the letters Salinger had sold her from that time. there was quite a hulabaloo. And since the auction was being conducted through Sotheby’s, as Joyce Carole Oates recounted, there was “not only a public auction but also a public exhibit of the private letter preceding the auction.” As Oates wrote, the situation might be troubling, and it’s certainly one fertile for lawyers:

One might argue reasonably that such a public exhibit constitutes ”publication,” for doesn’t it violate the writer’s rights over his or her material, assuming that these rights have been protected by the law? The complications are endless, a battlefield rife with spoils for ambitious lawyers.

But he wrote the letters to Salinger, and what about that exactly gives him sole say over whatever happens to them, as Oates asked:

Though Joyce Maynard has been the object of much incensed, self-righteous criticism, primarily from admirers of the reclusive Salinger, her decision to sell his letters is her own business, like her decision to write about her own life. Why is one ”life” more sacrosanct than another? In fact, we might be sympathetic to J. D. Salinger’s increasingly futile efforts to safeguard his precious privacy, as we might be sympathetic to anyone’s efforts, but that he happens to be a writer with a reputation is irrelevant.

And I can’t say I’m very sympathetic to Salinger’s efforts to maintain control over Holden Caulfield. He’s an iconic character. It’s difficult to live through adolescence in the U.S. without feeling his influence. He has as much life to an American of my age as did JFK, maybe more. Why should Salinger alone control his future. I know the difference between a book about Holden Caulfied by Salinger and one by someone else. But that’s not to say someone else writing about Holden Caulfield wouldn’t have a lot to say J.D. Salinger might never be able to say.

J.D. Salinger may be a phony.

Don’t forget you read it here first: J.D. Salinger’s effort to stop the publication of a sequel to Catcher in the Rye on the grounds it infringes his copyright in the original novel is no sure thing either way. On the one hand, Holden Caulfield is very much his creation, and it seems the market Salinger has created by means of that creation might be considered his exclusive domain under copyright. But, then again, as copyright lawyer Marc Reiner said , the sequel “may qualify as a parody in the court’s eyes, as the ‘sequel’ puts the main character as an old man and may show a ‘transformative’ quality to the original-to what extent the book in question transforms the original work can affect whether it is seen as infringement.”

As I explained, this argument is founded principally upon the case in which the copyright owners of Gone with the Wind sued the writer of The Wind Done Gone. The court determined that The Wind Done Gone made fair use of the copyrighted characters and stories Gone with the Wind because “TWDG is more than an abstract, pure f ictional work. It is principally and purposefully a critical statement that seeks to rebut and destroy the perspective, judgments, and mythology of GWTW. Randall’s literary goal is to explode the romantic, idealized portrait of the antebellum South during and after the Civil War.”

Now I don’t think you have to rebut, destroy, and explode the original to constitute commentary constituting fair use upon the original. Nor is it easy for me to imagine a sequel that does not comment upon the original. And isn’t Holden Caulfield now such a cultural icon that he belongs to all of us, not just to J.D. Salinger?

But that’s going too far. I don’t think I could produce “Holden Caulfield” playing cards or action figures without J.D. Salinger’s consent. But if you can use Scarlett O’Hara in a sequel to Gone with the Wind that uses Gone with the Wind to make its own points, why can’t you use a Holden Caulfield nearing 80 to comment on Catcher in the Rye?

Is Holden Caulfield still only J.D. Salinger’s character?

J.D. Salinger recently filed a lawsuit (complaint (pdf)) seeking to block the publication of 60 Years Later: Coming through the Rye, an unathorized sequel to Catcher in the Rye, on the grounds it infringes Salinger’s copyright in the novel and in Holden Caulfield, the “narrator and essence of that novel.”

It’s an interesting case.  In SunTrust Bank v Houghton Mifflin Co., 268 F.3d 1257, 60 U.S.P.Q. 2d 1225, 14 F.L.W. Fed. C, 1391 (2001, 11th Cir.), rehearing denied en ban, 275 F3d 58 (11th Cir. 2001), the owners of the copyright to Gone With the Wind sued the publisher that owned the rights toThe Wind Done Gone, a critique of the depiction of slavery and the Civil-War era American South and that used and drew upon the characters and story line from Gone with the Wind.  The court ordered the lawsuit dismissed because The Wind Done Gone‘s use of the characters and story line from Gone with the Wind constituted fair use.  The court’s conclusion was that TWDG was a protected parody of GWTW because one of its principal purposes was to critique the worldview advanced  by GWTW:

TWDG is more than an abstract, pure f ictional work. It is principally and purposefully a critical statement that seeks to rebut and destroy the perspective, judgments, and mythology of GWTW. Randall’s literary goal is to explode the romantic, idealized portrait of the antebellum South during and after the Civil War. In the world of GWTW, the white characters comprise a noble aristocracy whose idyllic existence is upset only by the intrusion of Yankee soldiers, and, eventually, by the liberation of the black slaves. Through her characters as well as through direct narration, Mitchell describes how both blacks and whites were purportedly better off in the days of slavery: “The more I see of emancipation the more criminal I think it is. It’s just ruined the darkies,” says Scarlett O’Hara.GWTW at 639. Free blacks are described as “creatures of small intelligence . . . [l]ike monkeys or small children turned loose among treasured objects whose value is beyond their comprehension, they ran wild – either from perverse pleasure in destruction or simply because of their ignorance.” Id. at 654. Blacks elected to the legislature are described as spending “most of their time eating goobers and easing their unaccustomed feet into and out of new shoes.” Id. at 904.

It seems that any sequel is bound to comment on the original in one way or another. Does that mean any sequel is a non-infringing fair use of the original work? I doubt it, but where would the line go between a sequel sufficiently critical of the original and a sequel that merely exploits the value the author created in the original?