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Source link: http://archive.mises.org/10065/copyrights-colorful-characters/

Copyright’s Colorful Characters

June 3, 2009 by

On Monday, reclusive author J.D. Salinger emerged to file a copyright infringement lawsuit against the author and publisher of a forthcoming book that purports to be a sequel to Salinger’s 1951 novel, “The Catcher in the Rye.” The new book, “60 Years Later: Coming Out of the Rye,” is authored by the pseudonymous J.D. California.Salinger’s lawsuit claims copyright in the “Holden Caufield character,” the protagonist in both books, as well as the “exclusive right to create works derivative” to “Catcher.” Of course, Salinger has no interest in creating such works. He just wants to prevent others from ever doing so:

For over fifty years, as has been extensively reported in the media, J.D. Salinger has been fiercely protective of both his intellectual property and his privacy. He has not published any work since 1965 and, other than a 1949 short film of one of his early short stories, Salinger has never permitted any adaptations of any of his works. He has publicly disavowed any intention of doing so during his lifetime.

Salinger refuses to allow any derivative works based on the Holden Caufield character: “There’s no more to Holden Caufield. Read the book again. It’s all there. Holden Caufield is only a frozen moment in time.”

Salinger’s lawsuit makes three claims: First, that “Salinger’s copyright registration for ‘Catcher’ grants him copyright protection for its principal character and the narrator thereof, Holden Caufield.” Since the main character in the California novel — identified as “Mr. C” — is “substantially similar” to the “fully delineated” Holden Caufield character, Salinger’s rights have been violated.

Second, Salinger claims the right to stop the publication of the California novel since Salinger alone has the “exclusive right to create, or authorize others to create, derivative works based on ‘Catcher’” — even though, once again, Salinger has no intention of ever creating or authorizing such works.

Third, Salinger claims the sale of the California novel amounts to “common law unfair competition.” The California novel, Salinger says, is an attempt to “deceive and confuse the consuming public into believing that the Sequel emanates from Salinger, when in truth and fact it does not.” Of course, Salinger claims that he is the injured party rather then the “duped” consumers.

There’s certainly no question that Salinger owns the legal copyright to “Catcher in the Rye.” But it’s interesting to see how copyright has mutated from its utilitarian, constitutional origins. The Constitution allowed Congress the power, “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors . . . the exclusive Right to their respective Writings . . .” Salinger’s already enjoyed nearly 60 years of copyright protection — hardly a “limited Time” — for his novel. And now he’s proposing to use his copyright to prevent the “progress” of “useful arts” by forbidding any derivative works based on his story.

Furthermore, he’s claiming a right to control a specific character from his book as opposed to the entire work. How far can such a right extend? Salinger’s own lawsuit notes Holden Caulfield’s “place in American culture, referring to such things as a movie reviewer’s description of Harry Potter as the “Holden Caulfield of wizards.” Could Salinger sue to prevent such comparisons if he disagreed with them?

Salinger wants to have it both ways. He wants to continue making money from Holden Caulfield while simultaneously preventing anyone from expanding upon or offering their own interpretation of the character. If Salinger really wanted to freeze Caulfield in time, he would have locked the original “Catcher” manuscript in a desk drawer and never published it. Once you publish your ideas to the world, however, it’s hypocritical to argue nobody else should be allowed to offer their own take on those ideas.


Thinker June 3, 2009 at 4:15 pm

I cannot claim to be particularly familiar with copyright laws, but I believe that the “limited time” described by Congress extends at least 95 years after the publication, which is limited, though longer than the average human lifespan.

It is a very good thing that scientists are not bound by these ridiculous restrictions (they’re stuck with mere 20 year patents), though the distinction between equations that help explain the fundamental workings of the universe and phrases that help explain “the human condition” is lost on me.

Salinger’s reaction seems just as absurd as Leibniz berating Riemann for improving on “his” calculus.

FTG June 3, 2009 at 4:39 pm

Of course, Salinger has no interest in creating such works. He just wants to prevent others from ever doing so[...]

Run through me again how IP (in the guise of copyrights) is supposed to “promote” creativity and innovation…?

BioTube June 3, 2009 at 10:12 pm

The theory is that the exclusivity protects the profits of the minor players. Of course, if a book’s demand is high enough twenty years later to warrant copying, there’s room enough for the author himself.

Artisan June 4, 2009 at 2:37 am

When it comes to literary art, people make me laugh!

What idiot has ever read a book and then claimed “this is a good book BECAUSE it promotes my creativity!? Or BECAUSE its sales raise the level of GNP?”

Mises can do better than fight such straw man. To analyze copyright justification under consideration of such general “democratic” fulfilment is not … intelligent.

Books (except for coloring books perhaps) have not that PURPOSE, whatever Stalin or Mommy said. Books have only the individual purpose that an author puts into them through the publication of the combined words that are printed in it. There is no such thing as a common purpose for books to be defined by the law if you believe in free will.

JD California has thus no specific claim of raising the level of creativity in society (who should care about that level? How do you measure it?)… on the contrary, his action seems rather stupid to me.

This being said of course, Mr California should be allowed to read his great “stimulus” to his mom or to his friends w\o being bothered by “innovation” sniffing dogs.

Patent of course, is a different pair of shoes, as they are grounded on a general PURPOSE. The monopoly they get granted obviously infringes on the rights of others to freely follow that common purpose.

newson June 4, 2009 at 9:59 am

arguing against particular conditions of copyright along utilitarian lines is a useless exercise. it’s either right or wrong. five years or ninety-five, the pure arbitrariness of it all must give ip supporters cause to wonder.

Ben Ranson June 4, 2009 at 10:09 am

Mr. Salinger would do well by imitating Cervantes.

When another author published a sequel to Don Quixote, Cervantes responded by mocking the bogus sequel in his own Don Quixote Part II. Then, to ensure that no other authors would write further adventures of the Knight of the Sorry Face, Cervantes killed his protagonist at the end of the novel.

Ron June 4, 2009 at 10:32 am

I recently read a book by Stephen King which was based on what I thought was a very interesting premise…one that showed enormous potential for expansion. Unfortunately, thanks to copyright, it’s likely that none of those possibilities will ever be explored.

Loss to society, or protection of the author’s “rights”?

Renegade Division June 5, 2009 at 9:27 am

Interesting article. I was thinking about the copyright on characters the other day, and I was wondering if Libertarians can run a GNU kind of movement for copyrighted characters.

That is some sort of web service which has creative commons characters, free for anyone to be used in their Creative Commons or copyrighted novels.

In addition to that, I was wondering if it was possible to create your own version of Holden Caufield which is free from copyright?

Lemme take a more known example, say Harry Potter.
Say HP is English, so your character is African American. His name is Tyron Shielder.
He went to a school of magic called “Oliva Magic School” in Africa, in the deep jungles of Tanzania.
He is a favorite of Headmaster ‘Abdul Dilshan’, and its his destiny to fight the Evil Magic King “One who has no name”. and so on.

Now I understand when courts look at copyright issues what they look at is, how close is a character from the claimed copyrighted character. The various similarities etc etc.
So we basically bring our creative common character to as close as original, without falling into the limit of copyright violation.

My question is if we then spread the character as the “Creative Commons” version of Harry Potter(even lets say there are no similarities between Harry Potter, and Tyron Shielder, except for the talk on blogosphere), and we allow anyone to use the character and write their own fan fiction, or their own novels, would that be possible in any way??

Secondly if a website were to do something like that, will it be doing anything illegal(considering that the website owners themselves haven’t written any fiction using their character, but they just describe the character, maybe put an illustration at max)?

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