I've been disappointed to see the way the 60 Years Later: Coming through the Rye legal tangle has been unfolding. Very briefly, the basic facts are this:
Beyond what seems (to my inexpert eye) to be a facially apparent critique which ought to classify 60 Years Later as a fair use, creating new works using existing characters is common practice. Tom Stoppard did it with Rosencrantz and Guildenstern Are Dead; Jean Rhys did it with Wide Sargasso Sea; Paula Vogel did it with Desdemona: A Play about a Handkerchief; Alice Randall did it with The Wind Done Gone; Pia Pera did it with Lo's Diary. (Full disclosure: I did it with Portnoy's Daughter.) These authors aren't counterfeiters or pirates; they're authors themselves, people who are supposed to benefit from copyright. These works embody the compromise that copyright law strikes: it preserves exclusivity to one author without impinging on the free speech of another.
If the 60 Years Later case is going badly, it may be for reasons apart from fair use law. The defendant, Colting, has come across as weasely. Colting picked a pen name "J.D. California" that invokes "J.D. Salinger" and, making matters worse, he's told a number of contradictory stories about the name.
Publisher's Lunch reports that Colting initially claimed that his name really was "J.D. California": "[A] few days ago he insisted to the Telegraph 'My initials really are JD, my first names are John David and I changed my last name to California. That's what's in my passport.'"
Then Colting reversed himself, admitting that "J.D. California" was a pen name, but that he hadn't picked it to sound like "J.D. Salinger": "Somehow, John David California sounded like JD. I didn't think about that actually. I just thought it sounded cool. Of course afterwards, I see the resemblance," Colting told The Local.
Then, when asked for a picture of himself, he gave a photo of an actor friend of his, Gustav Roth, that ran in the Telegraph.
Outcomes in fair use disputes are notoriously difficult to predict because the test for fair use requires consideration of multiple factors. The character of the defendant isn't one of those factors, but defendants who come across as intending to ride the coat-tails of the famous don't tend to do well in court. Courts in intellectual property cases typically give heavy weight to evidence of bad intent -- perhaps because the issues are often difficult to parse, and bad intent often seems worthy of punishment. All the same, as a matter of law, the case ultimately turns on the work, not whether the defendant is an upstanding citizen.
If the court allows Colting's poor conduct to cloud the redeeming qualities of 60 Years Later, the people who will pay the price are other authors and the reading public.
- In 1951, J.D. Salinger published The Catcher in the Rye, a book about a wayward teenager, Holden Caulfied, who wanders aimlessly through NYC, often drunk;
- Earlier this year, someone called "J.D. California" published 60 Years Later, which purports to be a "sequel" to Catcher and features a character called "Mr. C" who wanders aimlessly through NYC (whether drunk is unclear since the book hasn't been released to the general public; I haven't read it);
- "J.D. California" was revealed to be Fredrik Colting, one of the owners of Nicotext, the Swedish publisher that first published 60 Years Later;
- J.D. Salinger sued to enjoin publication, claiming in his complaint that 60 Years Later was copyright infringement and not a fair use (e.g., a criticism, parody or transformation of the original);
- Colting defended, saying that 60 Years Later does not merely rehash Catcher, but includes J.D. Salinger as a character who tries to kill Mr. C in multiple ways;
- On June 17, a U.S. federal district court enjoined the release of 60 Years Later for 10 days;
- Although 10 days seems a moderate amount of time for an injunction, the judge indicated that she was not inclined to find that 60 Years Later was a fair use saying, "Let me be clear, I am having difficulty seeing that [a critique of Catcher] exists [in 60 Years Later]."
Beyond what seems (to my inexpert eye) to be a facially apparent critique which ought to classify 60 Years Later as a fair use, creating new works using existing characters is common practice. Tom Stoppard did it with Rosencrantz and Guildenstern Are Dead; Jean Rhys did it with Wide Sargasso Sea; Paula Vogel did it with Desdemona: A Play about a Handkerchief; Alice Randall did it with The Wind Done Gone; Pia Pera did it with Lo's Diary. (Full disclosure: I did it with Portnoy's Daughter.) These authors aren't counterfeiters or pirates; they're authors themselves, people who are supposed to benefit from copyright. These works embody the compromise that copyright law strikes: it preserves exclusivity to one author without impinging on the free speech of another.
If the 60 Years Later case is going badly, it may be for reasons apart from fair use law. The defendant, Colting, has come across as weasely. Colting picked a pen name "J.D. California" that invokes "J.D. Salinger" and, making matters worse, he's told a number of contradictory stories about the name.
Publisher's Lunch reports that Colting initially claimed that his name really was "J.D. California": "[A] few days ago he insisted to the Telegraph 'My initials really are JD, my first names are John David and I changed my last name to California. That's what's in my passport.'"
Then Colting reversed himself, admitting that "J.D. California" was a pen name, but that he hadn't picked it to sound like "J.D. Salinger": "Somehow, John David California sounded like JD. I didn't think about that actually. I just thought it sounded cool. Of course afterwards, I see the resemblance," Colting told The Local.
Then, when asked for a picture of himself, he gave a photo of an actor friend of his, Gustav Roth, that ran in the Telegraph.
Outcomes in fair use disputes are notoriously difficult to predict because the test for fair use requires consideration of multiple factors. The character of the defendant isn't one of those factors, but defendants who come across as intending to ride the coat-tails of the famous don't tend to do well in court. Courts in intellectual property cases typically give heavy weight to evidence of bad intent -- perhaps because the issues are often difficult to parse, and bad intent often seems worthy of punishment. All the same, as a matter of law, the case ultimately turns on the work, not whether the defendant is an upstanding citizen.
If the court allows Colting's poor conduct to cloud the redeeming qualities of 60 Years Later, the people who will pay the price are other authors and the reading public.
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