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July 9, 2009

From the Copyright Office

The Copyright Office has published a final rule establishing adjusted fees for its services. The adjusted fees will recover a significant part of the costs to the Office of registering claims and will recover full costs for many other services the Office provides that benefit only or primarily users of the services. The new fees are based on the cost of providing services and reflect cost savings associated with the implementation of electronic processing in the Copyright Office in 2007. The fee for online registration of a basic claim will remain $35. The registration fee for fill-in Form CO will rise from $45 to $50; however, if a faulty version of Form CO is submitted, making it necessary to process the claim as a paper filing, the fee will increase to $65. The fee for paper filings on Forms PA, SR, TX, VA, SE will rise from $45 to $65. Two fees have been adjusted downward to reflect decreased costs resulting from the availability of records online. The adjusted fees take effect August 1, 2009.

July 24, 2009

An Aesthetic Decision in the Narrowest Confines: Salinger v. Colting

By Vince Manapat
www.vincemanapat.com

Imagine a judge deciding that your favorite book - the one you got from the drug store with the barbarian on the cover - cannot be sold because it did not meet a particular standard of beauty. Or the formulaic romantic comedy to which you turn in times of fatigue and ennui (and which you hide from your more intelligent friends) cannot be watched because a judge declared it "ugly." The thought of judges making aesthetic decisions makes almost anyone who cares about art or free speech nervous. Aesthetic decisions are complex, and judges possess no special abilities or training that make them suited to make such determinations. It was out of this fear that Justice Holmes famously wrote: "[i]t would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits." (Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251 (1903)). Nevertheless, judges can and must be able make aesthetic decisions, and the recent decision by Judge Deborah Batts enjoining the sale of 60 Years After: Coming Through the Rye (60 Years), a purported parody of Catcher in the Rye (Catcher), is a perfect example of how these decisions can be within "the narrowest confines and most obvious limits" as Justice Holmes phrased it. (Salinger v. Colting, No. 09-cv-5095, 2009 WL 2009 WL 1916354 (S.D.N.Y.)).

On May 14, 2009, the Guardian announced that a sequel to Catcher in the Rye, entitled 60 Years Later: Coming Through the Rye, by "J.D. California" (the pen name of Frederick Colting) was going to be published. (Alison Flood, Catcher in the Rye sequel Published, but not by Salinger, Guardian.co.uk, May 14 2009, http://www.guardian.co.uk/books/2009/may/14/catcher-in-the-rye-sequel). In the sequel, a geriatric Holden Caufield ("Mr. C") leaves an old age home and goes through many of the original scenarios in Catcher. Initially, the book was marketed as "a marvelous sequel to one of our most beloved classics." The author said he "wanted to be respectful" and "tried to handle it very delicately" and even characterized the 60 Years as a tribute. His attempts at respect, however, had very little effect on J.D. Salinger, and within two weeks of the Guardian story, Mr. Salinger sued Colting and his publisher to enjoin the work's publication.

The case raised strong emotions from every quarter. Some were incensed by the level of control Salinger exercised over his works, and saw this as one more example of a powerful author restricting society's access to the arts. (Howard Knopf, Salinger Sues for Sequel, http://excesscopyright.blogspot.com/2009/06/salinger-sues-for-sequel.html.). Others saw the "sequel" as nothing more than a money grab, and "a flimsy, cheap, attention-seeking piece of opportunistic schlock clinging with whitened knuckles to the coattails of literary greatness." (Stuart Evers, Put an end to the Catcher in the Rye Sequel: 60 Years Later Coming Through the Rye is on its Way. Oh God, I Wish it Wasn't. http://www.guardian.co.uk/books/booksblog/2009/may/14/catcher-in-the-rye-sequel). Whatever the views on the propriety of publishing 60 Years, no one could dispute the fact that 60 Years took substantial portions of Catcher in both style and content. Salinger's complaint and Judge Betts's decision note striking similarities and even particular sentences lifted almost word for word. For instance, in Catcher, Holden says, "[i]'ll just tell you about this madman stuff that happened to me around last Christmas just before I got pretty run-down and had to come out here and take it easy." In the sequel, Mr. C has a similar observation: "I keep my eyes closed and think about all the madcap stuff that happened to me around last Christmas, before I got so run down I had to come out to this place to rest."

This is without a doubt infringement, but the defendant argued the defense of fair use and parody. At the hearing to show cause, it was immediately apparent that Judge Batts was not amenable to this claim. She made it clear early in the proceeding that she saw several problems with the parody argument. At one point, she cut off the defendants' attorney, Edward H. Rosenthal, and pointedly asked "how is it criticism?" a question repeated several times through the proceeding and to which no answer satisfactory to the judge seemed forthcoming. When the court's decision was published on July 1, 2009, its result was no surprise.

The defendants' parody argument had two parts. First, 60 Years was a comment on the relation between Catcher in the Rye and J.D. Salinger. Second, 60 Years was to "critically examine the character Holden, and his presentation in Catcher as an authentic and admirable (maybe even heroic) figure." As elaborated by defendants' experts, the same laconic reflections we read in Catcher would "fall flat" when spoken by an older man in a new world. Holden Caulfield's reflections in Catcher seem honest and endearing, but in the sequel, the same reflections coming from an older Holden "evoke Aristotelian fear and pity" and "force readers to ask whether such anomie is all we fans of Holden may expect in old age."

The court rejected both of the defendants' arguments. First, the court held that 60 Years did not comment on the original because Holden as we know him in Catcher is already miserable, unconnected, and absurd. These characteristics led to many of Holden's failures in Catcher, such as being expelled from boarding school and becoming a patient in a psychiatric hospital. In the court's words, the effects of "Holden's uncompromising world view," as defendant characterized it, "were already thoroughly depicted and apparent in Salinger's own narrative." The public seems to remember Holden mostly for his rebelliousness, but as the court pointed out, this does not mean that Holden's "tendency toward depressive alienation" was not present in the original. Ultimately, the court decided that "[i]t is hardly parodic to repeat that same exercise in contrast, just because society and the characters have aged."

Second, the court rejected the defendants' argument that criticism of the author of a work will raise an infringing copy to the level of parody. In the court's view, the parody of the author must relate in some way to the work. 60 Years ostensibly commented on Salinger's "fierce protection" of his rights, but this is not in itself a comment on Catcher, since there is nothing in Catcher about the protection of copyrighted works. The court distinguished a recent case on these grounds stated, "60 Years contains no critique of Salinger that also critiques Catcher by extension."

To understand why Judge Betts's decision is correct, one must inquire into the basis for the fair use and parody defense. Fair use fulfills the Constitution's directive to "promote the Progress of Science..., by securing for limited Times to Authors . . . the exclusive Right to their . . . Writings." (William Patry, 11 Cardozo Arts & Ent. L.J. 667, 668 (1992) (quoting U.S. Const. art. I, S 8, cl. 8). The economic basis of the defense is that fair use reduces transaction costs and makes possible uses of copyrightable material that would not otherwise be available. For instance, a professor writing an article will use paraphrases and direct quotes from many different authors. If we required this professor to get a license from each author he quoted, the cost of the transactions taken together would be very high. For that reason, there is an exception in copyright law for "fair use," enabling the professor to use the quotes (which in all probability the authors would allow) and not risk lawsuits for infringement. Society benefits from the new article, and in many cases, the quoted authors benefit as well from the publicity. (Posner at 69).

Parody, however, is a different case. Authors are unlikely to license parodies of their own works, and even if they did, it would reduce the credibility of the parody, so some protection must be given to these socially valuable works. (William Landes & Richard Posner, The Economic Structure of Intellectual Property Law 150 (2003)). The Supreme Court has held that in some circumstances, parodies will be protected, even if the amount the parody borrows from the earlier work is substantial. (Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 581 (1994)). At the same time, the parody justification cannot be a carte blanche to infringers, which the Supreme Court (Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 581 (1994) (holding that judges must draw the line at some point despite parody's claim to legitimacy)) and the Second Circuit (Elsmere Music, 623 F.2d at 253 n. 1 "[a] parody is entitled at least to 'conjure up' the original. Even more extensive use would still be fair use, provided the parody builds upon the original, using the original as a known element of modern culture and contributing something new for humorous effect or commentary.") have made clear. The question is where to draw the line; that is, when the amount copied is so great and the commentary so weak or non-existent, that a work is not entitled to protection as a parody. But this presents a problem: any work of art that alters another is arguably making some form of comment and criticism, so some factfinder must decide whether the commentary is insufficient. The range of opinion about literary matters one can find in the academy at any time in history shows that this is a complex field ripe for manipulation in courts. An ostensible parodic purpose posited by the infringer cannot be enough to entitle him or her to fair use protection. The factfinder must be able to evaluate the claim, even if it means making an aesthetic decision.

This kind of evaluation will inevitably be aesthetic because it is a decision about how one piece of art relates to another. Any aesthetic decision will present manifold perils, particularly with respect to subjectivity. But this is no different from other difficult decisions that judges make every day in other areas of the law. For instance, a judge is in an equally bad position to decide whether someone "intended" to commit a certain act (because judges are not necessarily psychologists), or whether an act was a proper business purpose (because judges are not necessarily business people). Nevertheless, judges must make these decisions in order for the law to function. Our society has given judges the power to make these decisions because the alternative, having no laws, is untenable to most.

In this case, the defendants posited a parodic purpose. In fact, they presented two of them, and backed them up with expert testimony from literature professors. The court, however, rejected them both, and in doing so, stayed within the "the narrowest confines and most obvious limits" of aesthetic decisionmaking. Critics of the decision must contend with the sheer amount of copying involved in this case, and the particular manner in which the idea of making Holden 60 years older was executed. It is conceivable that a book which makes Holden Caulfield 60 years older could be written in a way that provides a meaningful addition to American literature. That, however, is not what happened here. The author of 60 Years merely increased Holden's age and took him, in rote fashion, through every scenario found in the original. This is like taking a piece of music, putting it in a different key, and claiming that it is a parody; it's an merely an exercise in transposition. The similarities between the books are vast and limited only by the inclusion of Salinger as a character (which appears, for the most part, in one chapter). This situation can be distinguished from Suntrust Bank v. Houghton Mifflin Co. where the parodying work, though it took substantial portions from the original, told the story through a completely different viewpoint and with a well-defined commentary on the original. (268 F.3d 1257, 1270 (11th Cir. 2001) (holding reference to original plot and characters were in service of parodist's general attack on Gone With the Wind). Suntrust is not without its critics. In one of the most remarkable passages of William Patry's Copyright treatise, he wrote: "The use in SunTrust was neither a parody nor fair...SunTrust is the first, and hopefully last, politically correct fair use decision: there should be no illusions that had the original been a cherished work in the liberal firmament, and the "parody" a right-wing attack, an identical, excessive, nontransformative taking would have been swiftly and sanctimoniously enjoined." Patry on Copyright ยง 10:98).


Here, an earlier case of literary adaption , that of Pierre Menard's Quixote is illustrative. Menard was the author of numerous works including a monograph on Leibniz's Characteristica universalis, and a technical article on the possibility of enriching the game of chess by eliminating one of the rook's pawns. Menard saw adaptions such as Colting's as "parasitic." In his opinion, these works were "good for nothing but occasioning a plebian delight in anachronism or (worse yet) captivating us with the elementary notion that all times and places are the same, or are different." With this in mind, Menard set himself to the task of writing Don Quixote; not another Don Quixote, or a mechanical reproduction of Don Quixote, but the Don Quixote, word for word. One critic, writing in 1939, praised Menard's version (which was never completed) as being "more subtle than Cervantes'." The critic set two passages side by side. First, Cervantes':
...truth, whose mother is history, rival of time, depository of deeds, witness of the past, exemplar and advisor to the present, and the future's counselor.
Menard's version reads:
...truth, whose mother is history, rival of time, depository of deeds, witness of the past, exemplar and advisor to the present, and the future's counselor.
Menard's version, according to the critic, is affected; he was not a native speaker of Spanish and so could not write with the same naturalness as Cervantes could. In addition, the second passage was written by a contemporary of Bertrand Russell and William James. In essence, the second passage was written from a far different perspective, that of a foreigner living in a future world. (Jorge Luis Borges, Collected Fictions, Pierre Menard, Author of the Quixote 88-95 (1998)).

Of course, that was a Borges story. But the lesson of Pierre Menard is nonetheless important to understanding parody law. Judged by the text, the two works are exactly the same, yet the unnamed critic and narrator of the story provides significant differences between the two. These differences, while important in the context of literary theory, should not be sufficient to render Menard's version a "parody," just as the reasons posited by Colting should not be sufficient to protect his work.

Parodies are socially valuable, and their place in our society should be protected - what would our culture be without Ghostface Killah's take on It's a Wonderful World (Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992)), or Jeff Koons's Puppies? (Abilene Music, Inc. v. Sony Music Entertainment, Inc., 320 F.Supp.2d 84 (S.D.N.Y. 2003)). But the line between parody and infringement must be drawn somewhere, and this will require limited aesthetic decisionmaking on the part of judges. Judge Batts's decision was well within the confines of Holmes's "narrowest and most obvious limits." If works such as 60 Years are considered parody, then the parody defense has no function but to allow unrestricted copying; its contours will be so broad and wide that anyone copying another work could merely posit an ex post facto critical purpose and their infringement will be protected. Judges should have the ability to evaluate these critical purposes and determine whether they are sufficient for a work to be considered as critical of another. This framework will allow the law to fulfill the Constitution's directive to promote progress.

About July 2009

This page contains all entries posted to The Entertainment, Arts and Sports Law Blog in July 2009. They are listed from oldest to newest.

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