OTW & fair use case

[elz]

So, last week, the Second Circuit reversed the injunction against 60 Years Later Coming Through the Rye, which is a sequel of sorts to The Catcher in the Rye, in which, from what I can tell, a 76-year-old man named "Mr. C" becomes aware that he's a fictional character and eventually meets up with his creator, a thinly-veiled version of Salinger, who regrets having created him and is thinking of killing him off. I gather that's as far as the author goes in filing off the serial numbers, so to speak, and it was marketed as a sequel to Catcher in the Rye.

The OTW had filed an amicus brief in the case, so I was kind of curious to see what the court had said.



Basically, it seems to hinge on the 2006 Supreme Court case of eBay v. MercExchange, which set a new standard for the factors that need to be considered before a court can issue an injunction against something.

The heart of the matter:

Because the District Court considered only the first of the four factors that, under eBay and our holding today, must be considered before issuing a preliminary injunction, we vacate and remand the case. But in the interest of judicial economy, we note that there is no reason to disturb the District Court’s conclusion as to the factor it did consider—namely, that Salinger is likely to succeed on the merits of his copyright infringement claim.

Why they don't consider it fair use:

More serious is Defendants’ assertion of a fair use defense. And at this preliminary stage, we agree with the District Court that Defendants will not likely be able to make out such a defense. The District Court in its discussion of fair use focused on the first statutory factor: the “purpose and character of the use.” 17 U.S.C. § 107(1). In doing this, the Court found that “[i]t 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.” Salinger, 641 F. Supp. 2d at 262. Such a finding is not clear error. See Anderson v. Bessemer City, 470 U.S. 564, 575 (1985) (a district court’s findings regarding witness credibility are to be reviewed for clear error). It may be that a court can find that the fair use factor favors a defendant even when the defendant and his work lack a transformative purpose. We need not decide that issue here, however, for when we consider the District Court’s credibility finding together with all the other facts in this case, we conclude, with the District Court, that Defendants are not likely to prevail in their fair use defense.

I think the moral of the story is that if you're looking to publish something that may require a fair use defense, talk to a lawyer before you start making lots of public statements as to what your book is about.

In which the public and the First Amendment actually get considered:

Finally, courts must consider the public’s interest. The object of copyright law is to promote the store of knowledge available to the public. But to the extent it accomplishes this end by providing individuals a financial incentive to contribute to the store of knowledge, the public’s interest may well be already accounted for by the plaintiff’s interest.

The public’s interest in free expression, however, is significant and is distinct from the parties’ speech interests. See Pac. Gas & Elec. Co. v. Pub. Utils. Comm’n of Cal., 475 U.S. 1, 8 (1986). “By protecting those who wish to enter the marketplace of ideas from government attack, the First Amendment protects the public’s interest in receiving information.” Id. Every injunction issued before a final adjudication on the merits risks enjoining speech protected by the First Amendment. Some uses, however, will so patently infringe another’s copyright, without giving rise to an even colorable fair use defense, that the likely First Amendment value in the use is virtually nonexistent.

So they're not necessarily endorsing that argument in this case, but it's interesting to see that they do take it seriously as a factor.

I also found this footnote strangely relevant *cough*:

As Judge Leval noted in New Era Publications International, ApS v. Henry Holt & Co., “the justification of the copyright law is the protection of the commercial interest of the artist/author. It is not to coddle artistic vanity or to protect secrecy, but to stimulate creation by protecting its rewards.” 695 F. Supp. 1493, 1526 (S.D.N.Y. 1988).

(Warning: layperson's interpretations.)

Comments

[lian]

oh, I started reading the reversal and then got, uh, distracted by shiny things. ^^; but the last quote makes me giggle meanly and knowingly. I kind of want someone to quote this back to each and every author who's clueless about copyright on the internet. ...*shifty eyes*
But golly, that would be an interminable task! :D

[elz]

Heh. I meant to read the OTW brief too, but that's another 44 pages, and I figured I should go look at some shiny things in between. :)

And yeah - you could, of course, still argue that it's impolite to do something that an author has said makes her feel icky, but badly-written novels make ME feel icky, and that has very little to do with whether or not they are or should be legal.

[enigel]

Gah, sorry, legalese is still legalese and I feel my focus slipping instantly. Apart from the snark at the end. *g* Heh, judges can get away with saying that!

So, er, are we (OTW) arguing in favour of this work or not? Just so I know where I should stand. :P (My knee-jerk reaction is "oh noes, trying to sell fanfic, that's a no-no, we don't do that!" - but, like I said, legalese.)

[elz]

I think we're arguing that it's fair use, yeah. On the one hand, I can see where the fact that it seems to be largely about J.D. Salinger's relationship with his most famous character makes it more transformative than the average what-happened-next sequel. On the other hand, there are a lot of things I don't like about US copyright law, but protecting a (then-)living author's right to publish or authorize - or not - sequels to their works is not necessarily where I myself would start chipping away at it. But I guess you've got to jump into it somewhere to become part of the conversation and to do what you can to start influencing the established law. And I might only be partially sympathetic to the author here, but I think it's a win to get a court to establish a higher standard when it comes to getting an injunction against a work that may or may not be a fair use under the law.

I forgot to quote it, but there was also this bit:

Finally, the Court observed that 60 Years Later’s commercial nature further cuts against Defendants on the “purpose and character of the use” factor.

Which makes it clear that the courts DO consider whether something is being sold commercially when it comes to whether or not it's a fair use.

[elz]

...was that too much more legalese-vomit? I get kind of excited about these things. *g*

last quote!

[hl]

brb lol-ing forever.

Re: last quote!

[elz]

It seemed apt. ;)