Apropos Appropriation; New York Times, 1/1/12

Randy Kennedy, New York Times; Apropos Appropriation:

"In March a federal district court judge in Manhattan ruled that Mr. Prince — whose career was built on appropriating imagery created by others — broke the law by taking photographs from a book about Rastafarians and using them without permission to create the collages and a series of paintings based on them, which quickly sold for serious money even by today’s gilded art-world standards: almost $2.5 million for one of the works...

The decision, by Judge Deborah A. Batts, set off alarm bells throughout Chelsea and in museums across America that show contemporary art. At the heart of the case, which Mr. Prince is now appealing, is the principle called fair use, a kind of door in the bulwark of copyright protections. It gives artists (or anyone for that matter) the ability to use someone else’s material for certain purposes, especially if the result transforms the thing used — or as Judge Pierre N. Leval described it in an influential 1990 law review article, if the new thing “adds value to the original” so that society as a whole is culturally enriched by it."

Court Allows Richard Prince to Appeal Copyright Decision; New York Times, 9/15/11

Randy Kennedy, New York Times; Court Allows Richard Prince to Appeal Copyright Decision:

"In a closely watched visual-arts copyright case, a federal appeals court ruled on Wednesday to permit an appeal by the artist Richard Prince, who was found in March by a lower court to have unlawfully used images by a French photographer to create a series of collages and paintings."

Judge Rules Against Richard Prince in Copyright Case; New York Times, 3/21/11

Randy Kennedy, New York Times; Judge Rules Against Richard Prince in Copyright Case:

"A federal judge in Manhattan has ruled against the artist Richard Prince in a closely watched copyright case, finding that Mr. Prince – who is well known for appropriating imagery created by others – violated the law by using photographs from a book about Rastafarians to create a series of collages and paintings."

District Court Bans 'Catcher In The Rye' Sequel; Since When Did The US Ban Books?; TechDirt, 7/2/09

Mike Masnick via TechDirt; District Court Bans 'Catcher In The Rye' Sequel; Since When Did The US Ban Books?:

"The rest of the discussion on the four factors fair use test is rather troubling...

Stunningly, the judge even points out that the stories have similar arcs (which isn't surprising), but to claim that because of a similar story arc there's infringement is incredibly troubling for pretty much any writer. After all, people write stories with similar arcs all the time.

Finally, and perhaps most disturbing of all, is her finding on the fourth prong, concerning the impact on the market for the copyrighted work, she actually finds that this weighs against fair use. Again, the logic simply does not add up. The judge admits that it probably would not negatively impact the actual demand for Catcher in the Rye, she actually ignores the fact that the opposite would likely occur. If anything, it will drive more people to go out and buy copies of the original to read (or, more likely in many cases to re-read) to go along with this new book. The judge's reasoning is that this book would harm the market for an actual sequel, but again, that's difficult to square with reality. If JD Salinger announced he was writing a sequel... that would make tremendous news, and it would be quite clear that people would rush to get the "real" sequel. Even if he were to license it (which appears to be the judge's main concern) to someone else to write (which seems insanely unlikely given Salinger's actions to date), people would quickly learn of the "authorized" vs. "unauthorized" versions. It's difficult to see how it would harm the market at all.

This is a very troubling ruling that seems to go against the very basics of copyright law in many, many ways. Hopefully, the ruling does not stand for very long."

http://www.techdirt.com/articles/20090702/0125045432.shtml

Holden Caulfield Stays Young: Salinger Wins Copyright Suit; Wall Street Journal Law Blog, 7/1/09

Ashby Jones via Wall Street Journal Law Blog; Holden Caulfield Stays Young: Salinger Wins Copyright Suit:

"U.S. District Court judge Deborah Batts followed up on her temporary restraining order from last month, and permanently banned publication of an unauthorized sequel to J.D. Salinger’s uber-famous novel, Catcher in the Rye. Click here for the NYT article; here for the opinion; here and here for previous LB coverage of the case.

Judge Batts ruled that the novel, penned by an American living in Sweden who used the pseudonym J.D. California, did not fit into the fair use exception in copyright law because the book did not constitute a critical parody that “transformed” the original."

http://blogs.wsj.com/law/2009/07/01/holden-caulfield-stays-young-salinger-wins-copyright-suit/

Ruling for Salinger, Judge Bans ‘Rye’ Sequel; New York Times, 7/1/09

Sewell Chan via New York Times; Ruling for Salinger, Judge Bans ‘Rye’ Sequel:

"In a victory for the reclusive writer J. D. Salinger, a federal judge on Tuesday indefinitely banned publication in the United States of a new book by a Swedish author that contains a 76-year-old version of Holden Caulfield, the protagonist of “The Catcher in the Rye.”

The judge, Deborah A. Batts, of United States District Court in Manhattan, had granted a 10-day temporary restraining order last month against the author, Fredrik Colting, who wrote the new novel under the pen name J. D. California.

In a 37-page ruling filed on Wednesday, Judge Batts issued a preliminary injunction — indefinitely banning the publication, advertising or distribution of the book in this country — after considering the merits of the case. The book has been published in Britain.

“I am pretty blown away by the judge’s decision,” Mr. Colting said in an e-mail message after the ruling. “Call me an ignorant Swede, but the last thing I thought possible in the U.S. was that you banned books.” Mr. Colting and his lawyer, Edward H. Rosenthal, said they would appeal. The decision means that “members of the public are deprived of the chance to read the book and decide for themselves whether it adds to their understanding of Salinger and his work,” Mr. Rosenthal said...

In a copyright infringement lawsuit filed June 1, lawyers for Mr. Salinger contended that the new work was derivative of “Catcher” and Holden Caulfield, and infringed on Mr. Salinger’s copyright.

The work by Mr. Colting, 33, centers on a 76-year-old “Mr. C,” the creation of a writer named Mr. Salinger. Although the name Holden Caulfield does not appear in the book, Mr. C is clearly Holden, one of the best-known adolescent figures in American fiction, aged 60 years.

(The similarities between the characters were not much in dispute. As Judge Batts wrote in her ruling, “Both narratives are told from the first-person point of view of a sarcastic, often uncouth protagonist who relies heavily on slang, euphemisms and colloquialisms, makes constant digression and asides, refers to readers in the second person, constantly assures the reader that he is being honest and that he is giving them the truth.”)

Mr. Colting’s lawyers argued, among other things, that the new novel, titled “60 Years Later: Coming Through the Rye,” did not violate copyright laws because it amounted to a critical parody that had the effect of transforming the original work.

Judge Batts rejected that argument, writing:
To the extent Defendants contend that 60 Years and the character of Mr. C direct parodic comment or criticism at Catcher or Holden Caulfield, as opposed to Salinger himself, the Court finds such contentions to be post-hoc rationalizations employed through vague generalizations about the alleged naivety of the original, rather than reasonably perceivable parody...

While the case could still go to trial, Judge Batts’s ruling means that Mr. Colting’s book cannot be published in the United States pending the resolution of the litigation, which could drag on for months or years."

http://cityroom.blogs.nytimes.com/2009/07/01/judge-rules-for-salinger-in-copyright-suit/?hp

Federal Judge Mulls Copyright Status for Salinger's Holden Caulfield; Law.com, 6/18/09

Mark Hamblett via Law.com; Federal Judge Mulls Copyright Status for Salinger's Holden Caulfield:

"Marcia B. Paul of Davis Wright Tremaine, representing Salinger, won the first part of the hearing by convincing [Judge Deborah] Batts, who said she had read both books, that there was a "substantial similarity" between the two works.

Paul and the attorney for Colting and his publisher, Edward H. Rosenthal of Frankfurt Kurnit Klein & Selz, disagreed over the degree of copyright protection that can be afforded the characters within a book.

Rosenthal said there is case law protecting ubiquitous animated figures such as Superman, but that the 2nd U.S. Circuit Court of Appeals and other courts have not extended the law's protection to purely literary or "words on a page" characters.

Paul responded, "That's not the law. A sufficiently delineated character should be protected."...

"It is hard to separate Holden Caulfield from the book," [Judge Deborah Batts] said. "It would seem that Holden Caulfield is copyrightable."

The judge then turned to the question of whether "60 Years Later" is nonetheless protected by the fair use doctrine.

Here, the burden shifted to Rosenthal, who noted that the point of copyright protection is to "promote the progress of science and the arts ..."

"But not stealing," Batts interjected...

The argument that "60 Years Later" was a work of literary criticism was not helped by the fact that Colting, known as "John Doe" in the pleadings, had called the book "a sequel" before he had time to consult with lawyers for his U.S. publisher, SCB Distributors...

Paul also said fair use protection presumes good faith and fair dealing."

http://www.law.com/jsp/article.jsp?id=1202431554331

US publication of book delayed in Salinger dispute; Associated Press, 6/17/09

Larry Neumeister via Associated Press; US publication of book delayed in Salinger dispute:

"U.S. District Judge Deborah Batts temporarily blocked publication of the book, "60 Years Later: Coming Through the Rye," until she rules whether the book transforms Salinger's original creation enough that it qualifies to be published as a "fair use" of a copyrighted work.

A ruling was anticipated in the next 10 days. The book was scheduled for U.S. release on Sept. 15 but the court dispute was likely to delay that...

She said she read both novels and agreed with Salinger that the new book was substantially similar to his own, published in 1951. Although there was little legal precedent to find that a character in a book with no drawings or photographs of him could be copyrighted, Batts said she believed Caufield could be.

"It's a portrait by words," she said. "It is difficult in fact to separate Holden Caulfield from the book

The hearing featured spirited arguments over whether Salinger's most famous literary character, Holden Caufield, is himself entitled to copyright protection and whether stopping publication of what some publicity materials referred to as a sequel would amount to a book ban.

[Fredrik] Colting, who lives near Gothenburg, Sweden, said in a court document that he did not "slavishly copy" Salinger when he wrote "60 Years Later," his first novel, under the pseudonym J.D. California.

"I am not a pirate," he wrote. He said he wrote the book as a critical exploration of the relationship between Salinger and his famous fictional character.

He said he used his book to transform "the precocious and authentic Holden into a 76-year-old man fraught with indecision and insecurity." The character, identified as "Mr. C," escapes from a retirement home and experiences similar to those Caulfield went through decades earlier.

He said his dedication of the book to Salinger was ironic.

"While I greatly admire Salinger as a writer, he is not the God-Author the public has created," Colting wrote. He also said it was a mistake that early copies of the book released in Great Britain included words promoting it as a sequel to Salinger's book.

During arguments Wednesday, Salinger lawyer Marcia Beth Paul called Colting's book "pure commercialism." She said 94 percent of the book was told in Caufield's voice and only 6 percent in Salinger's voice.

"This is a book about Holden Caulfield," Paul said. "It's a sequel, plain and simple."

She said it was wrong of the defendants to claim that blocking publication of the book because it infringes copyrights would be the same as banning a book. Salinger's book has frequently turned up on book ban lists.

"Make no mistake about it," Rosenthal charged in response. "This is banning the book."
He added: "To enjoin the book before a full exploration of the book is a prior restraint that raises very serious First Amendment questions.""

http://www.google.com/hostednews/ap/article/ALeqM5jBf9ALIEy3wQYsMPHAEVM370POkgD98SMA901

Temporary Restraining Order Issued in Salinger Case; Publishers Weekly, 6/17/09

Andrew Albanese via Publishers Weekly; Temporary Restraining Order Issued in Salinger Case:

"In a precedent-setting ruling today, federal judge Deborah Batts ruled that J.D. Salinger’s most famous character, Holden Caulfield, is protected by copyright. She did not rule, however, on whether Swedish author Fredrik Colting’s use of Salinger’s iconic character in his book 60 Years Later: Coming Through the Rye was allowable under fair use, and issued a temporary restraining order blocking its publication...

Whatever Batts's ultimate ruling on the fair use aspect of the case, a final decision in the case will most likely come from the appellate court, since Batts's decision will be appealed by either losing side...

Salinger has a right, attorney Marcia Paul told the court, "to keep The Catcher in the Rye or Holden Caulfield frozen in time for the life of his copyright.""

http://www.publishersweekly.com/article/CA6666016.html?rssid=192