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.

Robert Johnson made no deal with the devil; he listened to and learned from his colleagues.

In “Beyond Authorship: Refiguring Rights in Traditional Culture and Bioknowledge,” the Case Western Reserve University English Department’s Authorship Collaborative (building on the work of my colleague and friend Martha Woodmansee) explains that the prevailing view of an author as the originator of new works is a relatively recent phenomenon arising out of the Romantic Movement and its view of an artist as someone uniquely inspired. This view of authorship stands in stark contrast to an older view becoming new again in today’s remix cutlure — a view that creative endeavors are derivative and collaborative, that originality is not the product of isolated genius but of, well, remixing:

An “author” in the modern sense is the creator of unique literary, or artistic, “works” the originality of which warrants their protection under laws of intellectual property — Anglo American “copyright” and European “authors’ rights.” This notion is so firmly established that it persists and flourishes even in the face of contrary experience. Experience tells us that our creative practices are largely derivative, generally collective, and increasingly corporate and collaborative. Yet we nevertheless tend to think of genuine authorship as solitary and originary. This individualistic construction of authorship is a relatively recent invention, the result of a radical reconceptualization of the creative process that culminated less than two centuries ago in the heroic self-presentation of Romantic poets. In the view of poets from Herder and Goethe to Wordsworth and Coleridge genuine authorship is originary in the sense that it results not in a variation, an imitation, or an adaptation, and certainly not in a mere reproduction, but in a new, unique — in a word, “original” — work which, accordingly, may be said to be the property of its creator and to merit the law’s protection as such. See Martha Woodmansee, “The Genius and the Copyright: Economic and Legal Conditions of the Emergence of the ‘Author’”; reprinted in Woodmansee, The Author, Art, and the Market, 35-55.

The post I referred to yesterday by Rene Kita noted the tension between the collaborative nature of creation and the Romantic notion of authorship in connection with the Blues: “[Y]ou may ‘create’ a new instance of The Blues by shuffling the notes and words around by a set amount. Shuffle too little and you’re in trouble with the law. Shuffle too much and the purists start screaming rape.”

My former colleague Olufunmilayo B. Arewa makes the point in much greater depth in “Seeing but not Hearing Music: How Copyright Got and Didn’t Get the Blues,” a working paper she recently presented at the recent Conference on the 100th Anniversary of the 1909 Copyright Act. Arewa focuses on Robert Johnson, the musician who remained largely obscure until decades after his death he became known as the greatest and quintessential Blues musician. In Arewa’s view, Johnson is an archetypical example of the way the Romantic view of authorship promotes individual genius over cultural context:

Commentators have so elevated Johnson by using classic language associated with Romantic author discourse that emphasizes the unique genius of Johnson’s compositions. Romantic author discourse has generally played an important role in defining who constitutes an “author” for copyright purposes in part by emphasizing the unique and genius-likecontributions of individual creators. Romantic author assumptions are a primary mechanism by which borrowing and collaboration in creation are minimized or even denied. This vision of authorship has significantimplications for the application of copyright to blues music. The collaborative nature of blues musical composition does not lend itself very well to Romantic author characterizations. In blues practice, the combination of individual performers crafting material from a collaborative tradition is a difficult one from the perspective of current assumptions about creation in copyright. Later romanticization of his musical creations aside, Robert Johnson falls firmly within a blues tradition characterized at least in part by repetition and reuse of existing music and lyrics as a core aesthetic. [Charles Ford, "Robert Johnson's Rhythms", 17 Popular Music 71, 88 n. 57 note 57, at 88 (noting that Johnson borrowed and pasted-in materials much like his predecessors and shaped his pieces into unique and autonomous forms)].The divergence between Robert Johnson’s actual musical practice and later characterizations of both the nature and musical practices underlying his “musical genius” is thus significant. (footnotes omitted)

Why, then, did Robert Johnson, who in Arewa’s view was likely of a piece with an entire genre to African American audiences in the 1920s and 1930s, become known as a genius among musicians comparable to the way Shakespeare is viewed among writers? Because a bunch of white British musicians in the 1960s listened to his recordings and heard something they genuinely had never heard before. In other words, as Arewa explains, perceiving originality in the Romantic sense is more a matter of being ignorant of sources and influences than it is of genuinely discovering independent genius:

Conceptions of Robert Johnson’s work highlight the context dependent nature of notions of originality. Originality is yet another characteristic of copyrightability that is not always easy to delineate in actual contexts of creation. However, what might seem original to those in one context may not seem as original in other contexts. Consequently, within the context of African American audiences of the 1920s and 1930s, Johnson’s work probably did not seem startlingly original in the way that it did to British and other musicians and audiences listening to Johnson’s music, often in relative isolation, in the 1950s and 1960s. This later audience was largely removed from the original context of other music that was prevalent at the time Johnson produced his music or able to listen to a limited and likely biased sample of such music. For early African American blues listeners, what seemed original and
interesting was very different that what seemed interesting and original to the largely white blues fans that were the major force behind the blues revival in the 1950s and 1960s. For the latter, romantic conceptions about the blues were closely tied to notions of authenticity that are often unsuited to musical creation in living musical traditions. As a result, what is perceived as original may depend in significant part on the contexts within which listeners hear music. (footnotes omitted)

Don’t believe it? Here’s a song by Charlie Patton (1891-1934) and one by Robert Johnson: