A troubled male leaves an institutional setting, wanders around New York City, and eventually returns to a different institution. That's an idea that cannot be copyrighted. So when it shows up in books by different authors, what's the problem?
Let's flesh the two stories out. One male is sixteen and the other is seventy-six. Both protagonists are sarcastic, uncouth, depressed, and have trouble connecting with people. So far the second author hasn't crossed the line between ideas and expression. But let's continue.
At the beginning of each book, the protagonist leaves his institution (a boarding school and a nursing home, respectively) and wanders around New York City. While there, he almost has sex but ultimately decides not to, finds himself in Central Park, ponders where the ducks go in the winter when the ice freezes, stands on a hill next to a cannon while watching a sporting competition, and thinks about the metaphor that life is a game. Each protagonist also has a vision of himself saving children in a field of rye. As the story ends, the younger protagonist is in a mental institution contemplating his entry into a new boarding school and the older protagonist is in a different nursing home than the one he left.
Would it surprise you if these two protagonists shared the same memories and family background? In fact, the elderly man is the teenager fifty years later. But other than the physical process of aging, the protagonist has not changed in those fifty years.
J.D. Salinger believed in protecting his words. He was already a seasoned litigator when Frederick Colting wrote and published 60 Years Later: Coming Through the Rye, which Colting advertised as a "tribute" to Salinger and his classic novel, The Catcher in the Rye. Unfortunately for Colting, Salinger was not pleased with a tribute that he believed used his copyrighted expression.
As you can tell from the above description, 60 Years Later didn't just share a plot with The Catcher in the Rye: it was essentially a paraphrase. (In the interest of full disclosure, I didn't read either book. My summaries are based on the judge's summaries in the written decision, which I did read.)
The judge felt that Salinger was likely to prove copyright infringement, so she granted Salinger a preliminary injunction ordering Colting to stop selling the book while the case was pending.
This happened before a trial was held. The Second Circuit Court of Appeals later reversed the preliminary injunction but did not disturb the judge's finding that Salinger was likely to succeed on his copyright infringement claim. An educated guess says that Salinger would have eventually won the case. No one will ever know, however, because Salinger died and his executors settled the dispute.
The judge also rejected Colting's argument that 60 Years Later was a fair use of Salinger's book. But what makes something a fair use? Join me next month for the case of the President's words.
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Kathryn Page Camp is a licensed attorney and full-time writer. Her new book, Writers in Wonderland: Keeping Your Words Legal (KP/PK Publishing 2013) is available from Amazon.com and other retailers. Kathryn is also the author of In God We Trust: How the Supreme Court's First Amendment Decisions Affect Organized Religion (FaithWalk Publishing 2006) and numerous articles. You can learn more about Kathryn at www.kathrynpagecamp.com.
