Peter Friedman
Lawyer
Ruling Imagination: Law and Creativity
What did Jackson Pollock intend when he painted Lavender Mist? Cariou v. Prince, and the importance of scripting the artist’s words.
Patrick Cariou’s lawyers have filed their brief (embedded below) in opposition to Richard Prince’s appeal of the decision holding that Prince’s appropriation’s of Cariou’s photographs constituted copyright infringement. Writing in artnet, Rachel Corbett explains, among other things, that Cariou’s legal team
is banking largely on the claim that Prince’s work failed to comment on or satirize Cariou’s photographs — a common objection against applying the fair use exception to copyright law.
While Prince’s lawyers, Boies, Schiller and Flexner, convincingly argue that “Canal Zone” is “transformative” of the original works, Cariou’s lawyers say that’s not enough. “That argument fails because, absent a justification for the appropriation, taking copyrighted work in order to create ‘something new’ has no practicable boundary and would effectively eviscerate the rights of copyright owners.”
After all, they point out, Prince plainly, arrogantly, and perhaps fatally, said in district court that he had no real interest in the meaning behind Cariou’s work, and that he used it strictly as “raw material.” It’s “taking for the sake of taking,” Cariou’s lawyers argue.
As I wrote nearly a year ago, I believe it would be absurd to conclude whether Prince’s use of Cariou’s work was transformative based on Prince’s words. Artist’s are not particularly gifted at putting into words what their works mean. Why, after all, would we need their work if their words would suffice?
As Sister Wendy Beckett explains in the Encyclopedia Britannica Online, in words that are so well accepted they are almost trite,
The passageway provided by art is very wide. No single interpretation of art is ever “right,” not even the artist’s own. He or she can tell us the intent of the work, but the actual meaning and significance of the art, what the artist achieved, is a very different matter. (It is pitiable to hear the grandiose discussions of artists’ work by the least talented of our contemporaries.) We should listen to the appreciations of others, but then we should put them aside and advance toward a work of art in the loneliness of our own truth. Each of us encounters the work alone, and how much we receive from it is wholly the effect of our will to accept this responsibility.
What was Jackson Pollock’s purpose in painting Lavender Mist? Van Gogh’s in painting The Irises? Haven’t we accepted by now the limitations focus on artistic intention would impose on our appreciation of art? Nevertheless, in the decision enjoining the publication of a “sequel” to The Catcher in the Rye, the judge was significantly influenced by the fact the author and his representatives had described the work in words that didn’t fit the legal standard they wanted to meet:
Until the present lawsuit was filed, Defendants made no indication that 60 Years[the new work] was in any way a parody or critique of Catcher [in the Rye]. Quite to the contrary, the original jacket of 60 Years states that it is “. . . a marvelous sequel t one of our most beloved classics.” . . . Additionally, when initially confronted with the similarities between the two works, rather than explaining that60 Years was a parody or critique of Catcher, Colting’s [the new work’s author] literary agent, Mr. Sane, contended that 60 Years “is a completely freestanding novel that has nothing to do with the original Catcher in the Rye.” Opinion and Order at 16, n. 3.
Colting and his agent, obviously, should have called his work a parody and critique, not a sequel or a “freestanding novel.” Plainly, they had not been sufficiently counseled by lawyers who could have put the proper words in their mouths. It’s odd to think that being sufficiently versed in the mere words that would be consistent with the legal outcome you seek should make a difference, though. No matter what an artist said, his work would be the same.
In the same way, it seems odd that Prince’s refusal to articulate an artistic intent should be a determinant of the legitimacy of his artwork. The Amicus Brief filed in support of Prince’s appeal by the Andy Warhol Foundation for the Visual Arts (also embedded below) makes precisely these points (at 31-34; hyperlinks added):
The district court found Prince’s work was not transformative based entirely on Prince’s apparent inability to verbalize the meaning of it to the court’s satisfaction, and the court’s own conclusions about Prince’s subjective intent. See SPA-17-20. But transformative meaning must be assessed first and foremost by observation of the work itself, and whether new meaning and expression may be reasonably perceived from it. See Campbell, 510 U.S. at 582-83. In Campbell, the Court did not demand testimony from 2 Live Crew, or speculate about their subjective intentions. It concluded that elements of parody could reasonably be perceived from the work itself, and that was enough to establish its new meaning and expression. See id.
Ultimately, the meaning of art is defined by the viewer, not a judge, or even the artist himself. A viewer’s reaction to a work of art is shaped by the viewer’s personality, emotions, values, experience and knowledge. So while it is plainly dangerous for those trained in the law to judge the worth or meaning of art, see Campbell, 510 U.S. at 582-83, it is equally dangerous to pretend the meaning of art can be defined solely by the intention of the artist herself, much less her ability to articulate that intention to the satisfaction of judges and lawyers. See Pleasant Grove City v. Summum, 555 U.S. 460, 476 (2009) (recognizing “it frequently is not possible to identify a single ‘message’ that is conveyed” by a government monument, and the sentiments it expresses “may be quite different from those of . . . its creator”); Hurley v. Irish-Am. Gay Lesbian & Bisexual Group of Boston, 515 U.S. 557, 569 (1995) (“a narrow, succinctly articulable message is not a condition of constitutional protection” for expressive speech).
That is not to say the testimony of the artist is irrelevant. If, as in Blanch [v. Koons], the artist can explain the intended meaning of his work and how it differs from the work he borrowed, that testimony may be quite informative. But the failure to provide an explanation as polished as the one Jeff Koons provided in Blanch cannot be fatal. If it were, then every artist who works within this tradition will be forced to concoct a narrative that appeals to legal sensibilities, and the law will succeed in protecting only those artists who are scripted by counsel.
Other rules that protect First Amendment interests do not ask the speaker to demonstrate the value of her speech, or require her to persuade a judge of its worth. Neither does copyright. See Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251 (1903) (Holmes, J.) (“It may be more than doubted, for instance, whether the etchings of Goya or the paintings of Manet would have been sure of protection when seen for the first time.”).
The long tradition of appropriating existing images in the context of collage and other expressive practices described in Section I clearly demonstrates the important new meaning and expression these uses deliver. The Court should recognize that the use of existing images in visual art may convey a wide array of transformative meaning that goes far beyond direct commentary on the original and is not limited by the expressed intentions of the artist.
Cariou v. Prince: the damage to plaintiff is far more important than Richard Prince’s inability to articulate an artistic intent.
I discussed here nearly 2 years ago the lawsuit by photographer Patrick Cariou against Richard Prince alleging that the collages Prince had exhibited at the Gagosian Gallery in 2008 because they had appropriated photographs of Rastafarians Cariou had taken and published in his book Yes Rasta in 2001. I wrote then that the lawsuit “could have a profound impact on the art world, either clarifying that the widespread acceptance in the art world of appropriation art is legally legitimate or opening the door to an increased number of lawsuits by copyright holders against artists engaged in collage, sampling, satire, and any number of other genres that have become increasingly easy to engage in with the digitalization of media and the rise of the internet.”
The verdict is in: the court ruled in favor of Cariou and against Prince. The decision is embedded below.
On the one hand, the decision is not as far reaching as it might have been. The court emphasized that it was declining to accept Prince’s argument that “appropriation art is per se fair use, regardless of whether or not the new artwork comments on the original works appropriated.” Slip Op. at 17-18. On the other, the court limited the scope of fair use in appropriation art to work that comments on the original works, insisting that, “to the extent that [Prince’s works] merely recast, transform, or adapt the photos, [they] are . . . infringing derivative works.” Id. at 18.
There are a several interesting aspects of the case. First, the court emphasized that Prince “testified that he has doesn’t “really have a message” he attempts to communicate when he making art,” and that “[i]n creating [his] Paintings Prince did not intend to comment on any aspects of the original works or the broader [Rastafarian] culture.”
It may be a dangerous thing to depend on the artist’s intent in judging the transformative nature of his art. As Sister Wendy Beckett explains in the Encyclopedia Britannica Online, in words that are so well accepted they are almost trite,
The passageway provided by art is very wide. No single interpretation of art is ever “right,” not even the artist’s own. He or she can tell us the intent of the work, but the actual meaning and significance of the art, what the artist achieved, is a very different matter. (It is pitiable to hear the grandiose discussions of artists’ work by the least talented of our contemporaries.) We should listen to the appreciations of others, but then we should put them aside and advance toward a work of art in the loneliness of our own truth. Each of us encounters the work alone, and how much we receive from it is wholly the effect of our will to accept this responsibility.
What was Jackson Pollock’s purpose in painting Lavender Mist? Van Gogh’s in painting The Irises? Haven’t we accepted by now the limitations focus on artistic intention would impose on our appreciation of art? Yet, in Blanch v. Koons, 467 F.3d 244, 252-53 (2d Cir. 2007) (emphasis added), the Second Circuit, in holding that Jeff Koons’ appropriation of a copyrighted photograph constituted fair use, based its conclusion that Koons’ use of the photograph was “transformative” precisely on Koons’ statements regarding what he intended:
Koons asserts — and Blanch does not deny — that his purposes in using Blanch’s image are sharply different from Blanch’s goals in creating it. Compare Koons Aff. at P4 (“I want the viewer to think about his/her personal experience with these objects, products, and images and at the same time gain new insight into how these affect our lives.”) with Blanch Dep. at 112-113 (“I wanted to show some sort of erotic sense[;] . . . to get . . . more of a sexuality to the photographs.”). The sharply different objectives that Koons had in using, and Blanch had in creating, “Silk Sandals” confirms the transformative nature of the use. See Bill Graham Archives, 448 F.3d at 609 (finding transformative use when defendant’s purpose in using copyrighted concert poster was “plainly different from the [*253] original purpose for which they were created”); see also 17 U.S.C. § 107(1) (first fair-use factor is the “purpose and character of the use” (emphasis added)).
Koons is, by his own undisputed description, using Blanch’s image as fodder for his commentary on the social and aesthetic consequences of mass media. Castle Rock Entm’t, 150 F.3d at 142 (quoting Leval, supra, 103 Harv. L. Rev, at 1111). When, as here, the copyrighted work is used as “raw material,”Castle Rock Entm’t, 150 F.3d at 142 (internal quotation marks and citation omitted), in the furtherance of distinct creative or communicative objectives, the use is transformative. Id.; see alsoBill Graham Archives, 448 F.3d at 609 (use of concert posters “as historical artifacts” in a biography was transformative); Leibovitz v. Paramount Pictures Corp., 137 F.3d 109, 113 (2d Cir. 1998) (parody of a photograph in a movie poster was transformative when “the ad [was] not merely different; it differ[ed] in a way that may reasonably be perceived as commenting” on the original). His stated objective is thus not to repackage Blanch’s “Silk Sandals,” but to employ it “‘in the creation of new information, new aesthetics, new insights and understandings.’”
The test for whether “Niagara’s” use of “Silk Sandals” is “transformative,” then, is whether it “merely supersedes the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.”Campbell, 510 U.S. at 579 (internal quotation marks and citation omitted, alteration incorporated);Davis, 246 F.3d at 174 (same). The test almost perfectly describes Koons’s adaptation of “Silk Sandals”: the use of a fashion photograph created for publication in a glossy American “lifestyles” magazine — with changes of its colors, the background against which it is portrayed, the medium, the size of the objects pictured, the objects’ details and, crucially, their entirely different purpose and meaning — as part of a massive painting commissioned for exhibition in a German art-gallery space. We therefore conclude that the use in question was transformative.
In short, courts seem to be basing the transformative nature of alleged infringements on the avowed intentions of the artists themselves. Thus, in the decision enjoining the publication of a “sequel” to The Catcher in the Rye, the judge was significantly influenced by the fact the author and his representatives had described the work in words that didn’t fit the legal standard they wanted to meet:
Until the present lawsuit was filed, Defendants made no indication that 60 Years [the new work] was in any way a parody or critique of Catcher [in the Rye]. Quite to the contrary, the original jacket of 60 Years states that it is “. . . a marvelous sequel t one of our most beloved classics.” . . . Additionally, when initially confronted with the similarities between the two works, rather than explaining that60 Years was a parody or critique of Catcher, Colting’s [the new work’s author] literary agent, Mr. Sane, contended that 60 Years “is a completely freestanding novel that has nothing to do with the original Catcher in the Rye.” Opinion and Order at 16, n. 3.
Colting, obviously, should have called his work a parody and critique, not a sequel or a “freestanding novel.” It’s odd to think that makes a difference, though. No matter what he said, his work would be the same.
In the same way, it seems odd that Prince’s refusal to articulate an artistic intent and Koons elaborate description of his own intent are the most significant determinants of the legitimacy of their respective artworks.
Of course, there are more obvious was to distinguish Prince’s case from Koons’. Koons’ use of a fashion photograph in his collage quite plainly had no impact on any reasonably foreseeable markets for that fashion photograph. In contrast, Prince’s work quite obviously did have an impact on the commercial value of Cariou’s work. Cariou had been negotiating with a Manhattan gallery owner for a show of his Yes Rasta photographs when the Gagosian Gallery began showing Prince’s works that appropriated Cariou’s photographs. As a result, the gallery owner considering a show for Cariou’s works backed off, because “she did not want to exhibit work which had been “done already” at another gallery. Slip op. at 6-7.
So we need not go so far as to conclude that Cariou’s lawsuit signals the death of appropriation art in all its various guises. Blanch v. Koons alone is proof that is not the case. But if we realize how plainly and directly Prince’s appropriations damaged Cariou’s opportunities to economically benefit from his own work, the outcome (if not all of the reasoning) of this new case is obviously correct.
New force for the irreparable harm requirement in copyright preliminary injunction decisions? And might we see the Holden Caulfield sequel after all?
One week ago, the U.S. Court of Appeals for the 2d Circuit issued a very interesting ruling (inserted below) in the case in which J.D. Salinger sued Frederik Colting, alleging that Colting’s work, 60 Years Later Coming Through the Rye, infringes Salinger’s copyright in Catcher in the Rye. First, and perhaps most importantly, the 2d Circuit stated that “we conclude that the District Court properly determined that Salinger has a likelihood of success on the merits.” In other words, the 2d Circuit concluded that based on the evidence already presented to the trial court, it is likely Salinger (who, since his death, has been replaced as the plaintiff by Coleen Salinger and Matthew Salinger as trustees of the Salinger Literary Trust) it has concluded that 60 Years Later is likely an infringement of Catcher in the Rye.
Nevertheless, the 2d Circuit vacated the trial court’s preliminary injunction forbidding U.S. publication of 60 Years Later and instructed the trial court to reconsider whether a preliminary injunction should issue because, according to the 2d Circuit, the trial court did not apply the appropriate standard in determining whether a preliminary injunction should have been issued. Most importantly, the trial court had not considered whether, assuming it prevails in the end in the case, the Salinger Trust would suffer harm that it could not be compensated for at final judgment in the absence of the preliminary injunction.
It is important to note that a preliminary injunction is an order that someone should do or not do something that is in effect only until the final verdict is rendered in a case. A preliminary injunction is intended to preserve the status quo during trial of a case in situations in which the failure of the court to ensure the preservation of the status quo would somehow damage the party seeking the injunction in a way that would prevent him from being made whole by a final judgment.
Thus, the trial court in the Salinger case only determined that Salinger’s infringement claim had a likelihood of success on the merits. That means that the court leaves open the possibility that after the parties have had a chance to fully develop their evidence and the court has had the opportunity to see witnesses testify live (rather than just via the written affidavits the court earlier considered), it might change its mind on whether Salinger in fact has successfully established an infringement.
More importantly, perhaps, the 2d Circuit made clear that the trial court also needs to consider factors other than the likelihood of the success of the infringement claim. The 2d Circuit stated that the trial court must reconsider whether to grant the preliminary injunction under the standard the U.S. Supreme Court applied in determining the legitimacy of a permanent injunction (that is, an injunction issued at the end of a case as a final judgment) a patent infringement action in eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006). That standard (the typical standard applied in most injunction cases) requires the court to consider four factors: “(1) that [the party seeking the injunction] has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.”
No single factor is dispositive, nor are the factors given equal weight and considered together in any easy formulaic way. All the factors are considered in a holistic evaluation. Interestingly, however, the right to non-monetary, injunctive relief typically requires that the availability of monetary relief be inadequate to make the party seeking the injunction whole. It may be possible for Colting to argue on remand that even should, his work be found to infringe the Salinger Trust’s copyright in Catcher in the Rye, should he be able to publish 60 Years On during the pendency of the case, the Salinger Trust can be made whole by recovering whatever profits have in the meantime been made on the book. The Salinger Trust, in the meantime, is likely to argue the mere publication of the book in the U.S. will harm the Trust in a way that cannot be remedied by money because the mere presence of the book will detract from the value of the Trust’s copyright in the character of Holden Caulfield.
William Patry, in his treatise on copyright, has noted that courts in copyright cases have in the past rarely given real consideration to the “irreparable harm” argument in issuing preliminary injunctions “The gutting is accomplished definitionally: rather than reject the requirement outright, courts define the adequacy of legal remedies in such a way that those remedies can never be considered a substitute for plaintiff’s alleged losses.” William F. Patry, Patry on Copyright, §22:12, citing Douglas Laycock, The Death of the Irreparable Injury Rule, 103 Harv. L. Rev. 687, 692 (1990). Thus, Patry writes, “Preliminary injunctions are issued far more often than they should be, at least from a review of available decisions.”
It makes me wonder whether the 2d Circuit is taking a stand here and insisting that the trial court give real consideration to the requirement that the Salinger Trust could not be made whole, even if it eventually prevails on its infringement claim, in the absence of a preliminary injunction. If so, we may yet see 60 Years On published in the U.S., even if for only a brief time.
Salinger v Colting 2d Circuit Appeal of Prelim Injunction Decision
Don’t forget to call your mashup a reflection and critique of the works it appropriates!
In determining whether a work that appropriates a copyrighted work is a non-infringing fair use, the fundamental issue is whether the new work transforms the copyrighted work to a degree that makes the new work so creative it stands on its own. One thing that puzzles me is the degree to which courts rely on the artist’s expressed intent in deciding whether the new work is transformative. Are we really supposed to ground our determination of whether a work is “transformative” in the artist’s own expressed purposes?
To do so poses all sorts of problems. As Sister Wendy Beckett explains in the Encyclopedia Britannica Online in words that are so well accepted they are almost trite,
The passageway provided by art is very wide. No single interpretation of art is ever “right,” not even the artist’s own. He or she can tell us the intent of the work, but the actual meaning and significance of the art, what the artist achieved, is a very different matter. (It is pitiable to hear the grandiose discussions of artists’ work by the least talented of our contemporaries.) We should listen to the appreciations of others, but then we should put them aside and advance toward a work of art in the loneliness of our own truth. Each of us encounters the work alone, and how much we receive from it is wholly the effect of our will to accept this responsibility.
What was Jackson Pollock’s purpose in painting Lavender Mist? Van Gogh’s in painting The Irises? Haven’t we accepted by now the limitations focus on artistic intention would impose on our appreciation of art?
Not only does art live in its relationship with its audience, not in its creator’s mind, but to explore questions of intent in determining a work’s originality inevitably will raise questions of an artist’s stature. Is Jeff Koons original? According to Wikipedia, ‘[s]upporters claim (for Balloon Dog) “an awesome presence… a massive durable monument’ (Amy Dempsey, ed. Styles, Schools and Movements, 2002, Thames & Hudson), and for other work that it is possible to be ‘wowed by the technical virtuosity and eye-popping visual blast’ (Jerry Saltz, art critic). On the other hand, “Mark Stevens of The New Republic dismissed [Koons] as a ‘decadent artist [who] lacks the imaginative will to do more than trivialize and italicise his themes and the tradition in which he works… He is another of those who serve the tacky rich.’ Michael Kimmelman of The New York Times saw ‘one last, pathetic gasp of the sort of self-promoting hype and sensationalism that characterized the worst of the 1980s’ and threw in for good measure “artificial,” cheap” and “unabashedly cynical.”‘”
It seems likely a lot of people would have a difficult time considering anything by Koons original.
Yet, in Blanch v. Koons, 467 F.3d 244, 252-53 (2d Cir. 2007)(emphasis added), the U.S. Court of Appeals for the Second Circuit, in holding that Koons’ appropriation of a copyrighted photograph constituted fair use, based its conclusion that the new work was “transformative” precisely on Koons’ statements regarding what he intended:
Koons asserts — and Blanch does not deny — that his purposes in using Blanch’s image are sharply different from Blanch’s goals in creating it. Compare Koons Aff. at P4 (“I want the viewer to think about his/her personal experience with these objects, products, and images and at the same time gain new insight into how these affect our lives.”) with Blanch Dep. at 112-113 (“I wanted to show some sort of erotic sense[;] . . . to get . . . more of a sexuality to the photographs.”). The sharply different objectives that Koons had in using, and Blanch had in creating, “Silk Sandals” confirms the transformative nature of the use. See Bill Graham Archives, 448 F.3d at 609 (finding transformative use when defendant’s purpose in using copyrighted concert poster was “plainly different from the [*253] original purpose for which they were created”); see also 17 U.S.C. § 107(1) (first fair-use factor is the “purpose and character of the use” (emphasis added)).
Koons is, by his own undisputed description, using Blanch’s image as fodder for his commentary on the social and aesthetic consequences of mass media. Castle Rock Entm’t, 150 F.3d at 142 (quoting Leval, supra, 103 Harv. L. Rev, at 1111). When, as here, the copyrighted work is used as “raw material,” Castle Rock Entm’t, 150 F.3d at 142 (internal quotation marks and citation omitted), in the furtherance of distinct creative or communicative objectives, the use is transformative. Id.; see also Bill Graham Archives, 448 F.3d at 609 (use of concert posters “as historical artifacts” in a biography was transformative); Leibovitz v. Paramount Pictures Corp., 137 F.3d 109, 113 (2d Cir. 1998) (parody of a photograph in a movie poster was transformative when “the ad [was] not merely different; it differ[ed] in a way that may reasonably be perceived as commenting” on the original). His stated objective is thus not to repackage Blanch’s “Silk Sandals,” but to employ it “‘in the creation of new information, new aesthetics, new insights and understandings.’”
The test for whether “Niagara’s” use of “Silk Sandals” is “transformative,” then, is whether it “merely supersedes the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” Campbell, 510 U.S. at 579 (internal quotation marks and citation omitted, alteration incorporated); Davis, 246 F.3d at 174 (same). The test almost perfectly describes Koons’s adaptation of “Silk Sandals”: the use of a fashion photograph created for publication in a glossy American “lifestyles” magazine — with changes of its colors, the background against which it is portrayed, the medium, the size of the objects pictured, the objects’ details and, crucially, their entirely different purpose and meaning — as part of a massive painting commissioned for exhibition in a German art-gallery space. We therefore conclude that the use in question was transformative.
Given the focus on an artist’s expressed intent in making a work of art, it would seem wise for appropriation artists to be versed in the proper lingo. Call your work “a reflection and criticism of the themes evoked by the original.” You might even want to call your work a “parody” of the original, but doing so might be a little too blatant. It is plain that in the recent decision enjoining the publication of a “sequel” to The Catcher in the Rye, the judge was significantly influenced by the fact the author and his representatives had described the work in words that didn’t fit the legal standard they wanted to meet. The judge’s opinion seems in fact to indicate that if only the author had used the magic words to describe his work the outcome might have been different:
Until the present lawsuit was filed, Defendants made no indication that 60 Years [the new work] was in any way a parody or critique of Catcher [in the Rye]. Quite to the contrary, the original jacket of 60 Years states that it is “. . . a marvelous sequel t one of our most beloved classics.” . . . Additionally, when initially confronted with the similarities between the two works, rather than explaining that 60 Years was a parody or critique of Catcher, Colting’s [the new work’s author] literary agent, Mr. Sane, contended that 60 Years “is a completely freestanding novel that has nothing to do with the original Catcher in the Rye.”
Opinion and Order at 16, n. 3.
Colting, obviously, should have called his work a parody and critique, not a sequel or a “freestanding novel.” It’s odd to think that makes a difference, though. No matter what he said, his work would be the same.
How good a literary critic was the judge in the Catcher in the Rye case?
Will the judge’s decision that 60 Years Later: Coming Through the Rye infringes J.D. Salinger’s copyright in Catcher in the Rye stand up on appeal? My judgment is necessarily a qualified one. I haven’t read Coming through the Rye, and a truly informed judgment would require me to do so — in essence, the decision turns on whether Coming through the Rye is a commentary and criticism of Catcher in the Rye or, instead, an effort to cash in on the copyrighted character of Holden Caulfield. In other words, is Coming through the Rye original or not? I can’t tell for sure without reading it myself. Nevertheless, there are problems in the judge’s decision that cast it, in my mind, in some doubt.
Most troubling is the judge’s conclusion that Coming through the Rye cannot be deemed to comment on the original because Holden in the former is identical to Holden in the latter. The judge stated: “First, Colting’s assertion that his purpose in writing was to ‘critically examin[e] the character Holden, and his presentation in Catcher [in the Rye] as an authentic and admirable (maybe even heroic figure” is problematic and lacking in credibility.” To support that point, the judge refers to the sworn declaration submitted by Martha Woodmansee on behalf of Colting, quoting Woodmansee’s statement that “[r]eaders familiar with [Cather in the Rye] will anticipate the same laconic observations and reflections they associate with Holden Caulfield. What do they get from the 76 year old C? They get much the same kinds of observations and freflections, but coming from a 76 year old and applied to a world much changed in the 60 intervening years, such observations and reflections fall flat. They reveal a character whose development was arrested at 16, who instead of growin g up could only grow old.” The judge also quotes Woodmansee’s statement that the observations and reflections of Mr. C evoke “[in style and content . . . vintage Holden Caulfield, and coming from a 16 year old, they seemed honest and endearing. Coming from the 76 year old C, however, they seem pathetic.”
In short, the judge concluded that Coming through the Rye was not a parody of Catcher in the Rye because Holden in the new work was merely a copy, not an original character. She stated that it is hardly a parody to merely put the same character in a new situation: “It is hardly parodic to repeat that same exercise in contrast, just because society and the characters have aged.”
That is odd reasoning. One of the principal criticisms of Catcher in the Rye since its publication is that Holden did not develop at all emotionally or intellectually through the course of the book's story. "John Aldrige wrote that in the end, Holden remains what he was in the beginning -- cynical, defiant, and blind. As for the reader, there is identification but no insight, a sense of"pathos but not tragedy." This may be Salinger's intent, as Holden's world does not possess sufficient humanity to make the search for humanity dramatically feasible." In other words, by depicting a 76 year old Holden who is no different than Salinger's 16 year old Holden, one might conclude that the author was parodying the self-absorbed, dense, and unreflective 16 year old (as well as the author, who has contributed nothing to the creative life of the society from which he has done everything to withdraw since 1964). And indeed, Woodmansee takes the same characterization of the "young" and the "old" Holden the judge seizes upon and sees it precisely as parody. Her testimony is that "Mr. C" in Coming through the Rye is "a character whose development was arrested at 16, who instead of growing up only grows old. This is a devastating critique of Holden Caulfield in particular, of [Catcher in the Rye] generally, and of its author J.D. Salinger, whose apparent inability to ‘develop’ his hero reveals him to be ‘burned out.’” (emphasis added)
Is Coming through the Rye fair use.? I think on appeal it might well be found to be . It’s interesting that we make our judges literary critics in these cases. Why do I doubt the judge’s crtiticism? Because it seems to simplistic and because, knowing Martha Woodmansee personally, I feel far more confident in her abilities as a literary critic than I do in the judge’s.
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?