Having written in these posts about the manifold pleasures of reading, I must now admit that reading is not always an unmitigated pleasure. Reading the preliminary injunction decision in Salinger v. Colting, for example, evokes in me the kind of pain I felt when I was fifteen and saw my high school boyfriend kissing the girl who got the lead in the school musical (when I was cast in a distinctly supporting role -- and one originally intended for a man).
I love the law; I'm a rule-of-law true believer. (I feel embarrassed making that confession, because I think true believers of any stripe are jackasses, myself being no exception.) But I am constrained to wonder whether (with due credit to Jay Leno), if we Americans were destined to live under rule-of-law, wouldn't we have been given, oh I don't know, judges like Solomon?
Which is to say: a judge has barred publication, advertising or distribution of 60 Years Later: Coming Through the Rye, pending resolution of J.D. Salinger's lawsuit against the author of 60 Years Later, Fredrik Colting, and his publisher, Nicotext. The decision is not a wise one.
Sadly, the factor I'd identified previously seemed to weigh heavily in the judge's opinion: namely, Colting's (apparently) poor character. In footnote 3 of the opinion (downloadable here), the judge makes clear that she doesn't believe Colting's claim that 60 Years Later is a parody because Colting and his representatives changed their stories about the relationship between 60 Years Later and Catcher in the Rye: the characterizations ranged from "a sequel" to "a tribute" to "[it] has nothing to do with the original Catcher in the Rye." After this flip-flopping, the court found:
(p. 21.) Well, ok, Colting isn't integrity personified, which is not to say that he's a liar. The author of such previous monuments to culture as, The Macho Man's Drinkbook: Because Nude Girls and Alcohol Go Great Together, might be said (possibly) to be a tad immature.
But so what? The court's exegesis of Colting's character and motivations loses sight of the fact that Colting's character and motivations are not factors in the copyright fair use analysis. Nor, for that matter, is Colting self-awareness of his artistic aims.
Artists are notoriously inarticulate about their own work. At a book reading at Politics & Prose in D.C., I once heard E.L. Doctorow say something like, "Writers are the worst people to explain their own process of creation." And forget visual artists; if they string words together in adjective-noun-verb sequence, we have to applaud them, even if the logical connections between the words is nil (as it typically is).
The well-established and historically pervasive inability of artists to explain their own work is one of two humanitarian justifications for the existence of critics. (The other justification is that the profession is a jobs-creation program for sadists.)
Demanding of artists that they create works and have perfect awareness not only of what they're doing, but also how the law will categorize what they're doing is simply ridiculous. Colting wrote a book using Catcher in the Rye as a point of departure; if his work meets the standards of parody, it should be a fair use, regardless of what Colting thought -- or said -- he was doing.
That said, I'm not without sympathy for the judge in this case. The fair use "standard" is so indeterminate, and it guides jurists through so hollow an analysis, that simply ridiculous outcomes are the only guarantee in fair use litigation. In these cases, indicia of the defendant having a "bad" intent provides a seemingly solid basis for a legal determination ("Who knows what art, or parody, is, but I can at least identify the skunk," thinks the judge). Unfortunately, good artists, like good parodists, are usually skunks.
Small consolation that 60 Year Later, from the excerpts in the opinion, appears to have been written by a skunk who's not a good artist. But, then again, who knows? 60 Years Later is written in the style of Catcher in the Rye and, among the legions of fans of Holden Caulfield's "voice," you won't find me. I'm with James Stern on this one.
I love the law; I'm a rule-of-law true believer. (I feel embarrassed making that confession, because I think true believers of any stripe are jackasses, myself being no exception.) But I am constrained to wonder whether (with due credit to Jay Leno), if we Americans were destined to live under rule-of-law, wouldn't we have been given, oh I don't know, judges like Solomon?
Which is to say: a judge has barred publication, advertising or distribution of 60 Years Later: Coming Through the Rye, pending resolution of J.D. Salinger's lawsuit against the author of 60 Years Later, Fredrik Colting, and his publisher, Nicotext. The decision is not a wise one.
Sadly, the factor I'd identified previously seemed to weigh heavily in the judge's opinion: namely, Colting's (apparently) poor character. In footnote 3 of the opinion (downloadable here), the judge makes clear that she doesn't believe Colting's claim that 60 Years Later is a parody because Colting and his representatives changed their stories about the relationship between 60 Years Later and Catcher in the Rye: the characterizations ranged from "a sequel" to "a tribute" to "[it] has nothing to do with the original Catcher in the Rye." After this flip-flopping, the court found:
It is simply not credible for Defendant Colting to assert now that his primary purpose was to critique Salinger and his persona, while he and his agents' previous statements regarding the book discuss no such critique, and in fact reference various other purposes behind the book.
(p. 21.) Well, ok, Colting isn't integrity personified, which is not to say that he's a liar. The author of such previous monuments to culture as, The Macho Man's Drinkbook: Because Nude Girls and Alcohol Go Great Together, might be said (possibly) to be a tad immature.
But so what? The court's exegesis of Colting's character and motivations loses sight of the fact that Colting's character and motivations are not factors in the copyright fair use analysis. Nor, for that matter, is Colting self-awareness of his artistic aims.
Artists are notoriously inarticulate about their own work. At a book reading at Politics & Prose in D.C., I once heard E.L. Doctorow say something like, "Writers are the worst people to explain their own process of creation." And forget visual artists; if they string words together in adjective-noun-verb sequence, we have to applaud them, even if the logical connections between the words is nil (as it typically is).
The well-established and historically pervasive inability of artists to explain their own work is one of two humanitarian justifications for the existence of critics. (The other justification is that the profession is a jobs-creation program for sadists.)
Demanding of artists that they create works and have perfect awareness not only of what they're doing, but also how the law will categorize what they're doing is simply ridiculous. Colting wrote a book using Catcher in the Rye as a point of departure; if his work meets the standards of parody, it should be a fair use, regardless of what Colting thought -- or said -- he was doing.
That said, I'm not without sympathy for the judge in this case. The fair use "standard" is so indeterminate, and it guides jurists through so hollow an analysis, that simply ridiculous outcomes are the only guarantee in fair use litigation. In these cases, indicia of the defendant having a "bad" intent provides a seemingly solid basis for a legal determination ("Who knows what art, or parody, is, but I can at least identify the skunk," thinks the judge). Unfortunately, good artists, like good parodists, are usually skunks.
Small consolation that 60 Year Later, from the excerpts in the opinion, appears to have been written by a skunk who's not a good artist. But, then again, who knows? 60 Years Later is written in the style of Catcher in the Rye and, among the legions of fans of Holden Caulfield's "voice," you won't find me. I'm with James Stern on this one.
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