In Financial Times Christopher Caldwell comments on recluse nonagenarian J. D. Salinger’s lawsuit to prevent the publication of a thinly-veiled sequel to his sixty year old book, The Catcher in the Rye
We too easily forget, though, that copyright is not some vague spiritual entitlement. It is a property right. Confusing the two leads to overzealous defences of both intellectual property and intellectual piracy. Once we recognise that copyright is a property right, the strength of Mr Salinger’s position as an owner becomes clear. What exactly is it that he owns? For one thing, the complaint correctly states, “his right of first publication of a sequel is … of great monetary value.†Last year, J.K. Rowling sued the compiler of a reader’s guide to Harry Potter. It was a complex case involving a different kind of work than her books, one that arguably involved “transformationâ€. Yet she won. If someone had proposed bringing out an eighth Harry Potter book they would have been laughed out of court.
So Mr Salinger’s case is stronger than Ms Rowling’s because his rights to the fruits of his work are more demonstrably imperilled. Maybe few people would read 60 Years instead of Catcher, or instead of a sequel that Mr Salinger has written. But consider that if Nicotext has a right to publish the book, it has a right to any profits from it. Now imagine the sale of movie rights, profits from which would presumably accrue to Nicotext. Would it be right for such a movie to flash back to scenes drawn from Mr Salinger’s original and alluded to in this “sequel� Could the movie be marketed with posters reading: “Brad Pitt stars as Holden Caulfield� No.
Claiming that the character is not called Holden Caulfield does not sidestep the problem. The cover of 60 Years describes it as “a sequel to one of our most beloved classicsâ€, according to the complaint. Mr Salinger and his lawyers are also troubled by a comment a fictional version of Mr Salinger appears to make about Holden in the “sequelâ€: “I’m bringing him back. After all these years I finally decided to bring him back.†The implication is that the book is authorised. Maybe this Swedish spin-off should be published in some form at some point – but not until it is clear that it is published without the blessing of Mr Salinger.
I think this highlights the problem with copyrights and that they’ve been corrupted in recent years.
The constitutional purpose of copyrights is quite clear:
To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;
In other words it’s supposed to be an inducement for more creations not a cudgel wielded by an author to prevent creations. After sixty years and considering he hasn’t published an original work since 1965 it’s reasonable to conclude that Mr. Salinger has no interest in doing so.
The foundations of our current system of copyrights were laid in the era of Mozart, Beethoven, and Goethe, an era in which unique and wonderful works were being created by geniuses who appeared like bolts from the blue. A system designed for such prodigies is ill-adapted for the ordinary mortal world in which everything is derived from something else and the effect of perpetual copyrights held by undying corporations is stultifying rather than incentivizing. Intellectual property is different from real property, especially in that it is non-rivalrous.
I’m not arguing against copyright entirely. I’m arguing for the older idea of copyright: fifteen years or the natural life of the author, whichever is shorter. Provide incentives rather than embedding works in stone.
Fifteen years is far too short a term for most works. I prefer natural life of the author or 20 years, period. But an artist has a right to retain creative control of his creations. I think that Salinger is well within his rights to prevent someone from cashing in on his own works.
IMHO the analysis should be at the front end — at the time of creation, would the creator be less willing to make the work if he/she believes that popular success would give rise to thinly veiled unauthorized sequels for which he or she would be uncompensated?
I think the answer for at least 99% of writers would be “no.” Popular success of that magnitude is so rare that such a problem would be unanticipated joy. The one percent might include somebody like Stephen King, whose popularity and name recognition, would guarantee success. But it’s his name recognition that precludes any meaningful knock-off. Is there really a market for a Cather in the Rye sequel? Who are those people?
By what argument, Alex? Locke’s Treatise on Property did not argue for such a right; the U. S. constitution does not enforce such a right, indeed, the Constitution’s wording suggests that the Founders did not believe there was such a right.
As I wrote above, intellectual property is different.
I personally like Cervantes’ approach to unauthorized sequals: ridicule.
Pitcher in the Oats, coming soon.
The problem goes beyond the actual books to associated rights — movies and merchandise. I don’t think any of us want to think too much about toys or merchandise derived from Catcher in the Rye. But there are other properties where rights and merch are pretty major.
Take Dr. Seuss. He wrote Cat In the Hat in 1954. What do we do about a publisher or game developer or movie studio that wants to rip off Cat?
But as a copyright owner I’ll agree there has to be some kind of limit. Certainly a new look at the extent of the protection if not the duration.
Not only that, Michael. I find the idea of retro-active extension which the Supreme Court has left to the discretion of Congress very troubling.
I think 15 years is too short. I’m thinking of Joyce and Proust who took over 15 years to write their works; some form of (admittedly made-up) symmetry would seem to require at least as long of a protection period. Also, I’m thinking of Robert Jordan, whose Wheal of Time series took longer than 15 years to write and he would have apparently continued to write except for his demise. I’ve not read any of his books (and maybe a shorter time frame would have been beneficial), but he seems to be within the intent of protecting and promoting a work.
I’ve more problem with the estate and heirs. I’d limit the estate to 5 years, which would cushion the blow of an untimely death. The downside to benefitting the estate is that they have historically not always been kind to the author’s work IMHO. And I feel as much about the “rights” of the heirs as I do about estate taxes: tax the dead, they feel no pain.
I’ve more problem with the estate and heirs. I’d limit the estate to 5 years, which would cushion the blow of an untimely death.
In that case you may as well say the estate doesn’t get any copyright at all. Developing a movie from a book can take a long time, and the studios could just grind out the process to wait for the copyright to expire.
Frankly, I don’t see the problem with long copyrights. Has the progress of civilization really been held up because J. D. Salinger has been sitting on the rights to further exploit Holden Caulfield all these decades? For that matter, why should someone else get to make a buck off of Salinger’s prior work without Salinger at least getting a cut? Much of the talk about limiting copyrights just sounds like people wanting something for nothing.
The foundations of our current system of copyrights were laid in the era of Mozart, Beethoven, and Goethe, an era in which unique and wonderful works were being created by geniuses who appeared like bolts from the blue. A system designed for such prodigies is ill-adapted for the ordinary mortal world in which everything is derived from something else and the effect of perpetual copyrights held by undying corporations is stultifying rather than incentivizing.
Dave, this is just a huge steaming pile of BS.
First, Mozart, Beethoven, Goethe, etc didn’t just appear out of the blue. They were part of an ongoing culture that had been developing for centuries. I don’t know about Goethe, but Beethoven and Mozart were developed from very young ages within the musical community of the age.
Second, it’s funny that you are arguing for the right of EVERYONE to have dibs at everything post haste and then complain about the stultifying effects of corporations. If you want originality, then allowing everyone to copy everything will NOT produce anything original, just more crappy copies of copies, such as Family Guy. (There’s a show that should have been copyright-lawsuited right out of existence. It’s continued success is the surest sign that our civilization is on a doward trajectory.) The fact that Disney won’t let anyone else do Mickey Mouse cartoons is an incentive for people to come up with original characters, not the opposite. How you can argue the opposite is beyond me.
Something Ice and I agree on: Family Guy is an atrocity.
As I recall, Disney released a movie based upon the Jungle Book about a year after Kipling’s copyright had expired. To bad the Disney retroactive extension of copyright laws hadn’t been passed yet.
You’re starting from the assumption that once somebody creates something, like a non-rival piece of information (which is what books/magazines/etc amount to these days), society has an obligation to eternally protect their exclusive control over that property.
I don’t think that’s the case, to be honest. We didn’t start out with the premise that everybody has that right, and then narrow it down on patents for benefiting society – we started out with no patent or copyright protection at all, then added layers of protection to encourage innovation.
Unless you can make an argument that innovation in the literary area is going to be fundamentally harmed by eliminating life-long copyrights, then I don’t see why society should be obligated to ensure long protection for it.
I think that’s horrible they blocked the publishing of the book. Let the people read it and decide for themselves. Typical judge nazis. They always resort to using censorship to silence difference of opinions.