22 May 2013

Salinger and other characters

'Copyright Law and the Management of J.D. Salinger's Literary Estate' by Kate O'Neill in (2013) Cardozo Arts & Entertainment Law Journal (Forthcoming) offers a - for me, unconvincing - critique of moral rights.

O'Neill argues that
J.D. Salinger’s death in 2010 provides an occasion to consider three related questions: (1) does domestic copyright law now protect Salinger’s personal interests; (2) if not, should it be amended or interpreted to do so; and, (3) if it does protect personal interests, should that protection be continuous throughout the full copyright term, or should it diminish or end at the writer’s death?
In answer to the first two questions, I argue that domestic copyright law does not and should not protect any author’s personal interests in privacy, publicity, or reputation. In answer to the third question, I recognize that uses of unpublished expression necessarily raises issues of privacy, publicity and reputation interests, as well as copyright, but I argue that protection of personal interests embodied in unpublished work should diminish or cease upon the author’s death.
The Article makes two basic points. First, in two copyright infringement cases, Salinger succeeded in establishing judicial precedents that rejected colorable defenses of copyright fair use. In both cases, the courts rejected fair use defenses despite Salinger’s inability to show any economic injury. Arguably, the decisions reflected solicitude for Salinger’s personal interests but, as a result, they blurred an important and valuable legal distinction between personal interests and copyrights. Conflating personal interests with copyright makes a copyright seem more sacrosanct than it should be in our domestic system – less a commercial interest and more an identity right. Conflating also effectively broadens the copyright holder’s exclusive rights because domestic copyrights are expressly limited by the fair use doctrine while personal interests are not.
Second, however tempting it may have been to conflate Salinger’s personal interests with his copyright during his life, the temptation should be strenuously resisted and the two precedents should not be followed. The distinction between personal interests and copyrights has important practical consequences for the management of Salinger’s literary estate going forward – and for the estates of other authors. Plainly, Salinger’s estate includes copyrights on published works. With his passing, we can hope that his trustees will distinguish between his personal interests while alive and his copyrights and, if they will not, the courts will be more inclined to permit fair uses.
Salinger’s unpublished works may be of even more interest than his published works. Domestic and international copyright laws clearly give Salinger’s trustees the exclusive right to publish or withhold these unpublished works. Precisely because Salinger did not choose to publish these works, and because some of them may contain incomplete or unpolished prose or intimate or embarrassing revelations, the trustees’ temptation to use copyright to protect his or their personal interests may be especially strong. If they refuse to license uses on reasonable terms, the appropriate scope of fair use will be critical to scholars, biographers, and others. The article concludes by examining how the fair use doctrine should apply to various types of unpublished works.
In policy terms, I have used the particulars of Salinger’s copyrights to argue against the suggestions of some scholars and many authors that U.S. copyright ought to extend protection to what are loosely called “moral rights.” Put another way, the fundamental question is whether decency requires that Salinger’s literary estate be let alone, as he might have wished. I think not. I don’t think decency requires it anymore, and I’m sure the law should not. In our domestic culture, we do not have the right to dictate what others may find worth writing and learning about us. If we leave copyrighted expression behind after we die, then the expression should be regarded as artifact, not personhood, and the price we and our heirs pay for copyright protection for all of our fixed expression for 70 years after death is the public’s limited right to make fair use of the expression, whether we chose to exploit it or not during life.
'Fixing Copyright in Characters: Literary Perspectives on a Legal Problem' by Zahr Said in (2013) 35 Cardozo Law Review argues that
Scholars have long noted that copyright in characters is fraught with uncertainty and inconsistency. This Paper argues that an interdisciplinary approach sheds light on the doctrinal confusion. Literary history, theories, and texts demonstrate that the very factors that gave rise to characters’ centrality to modern literature may be the factors that make protecting them independently under copyright difficult. The more central characters become to works of literature, the less separable they will be from those works for the purposes of receiving independent copyright protection. Literary theories of reading also suggest that characters may fail to satisfy one of copyright’s fundamental requirements: fixation. Contemporary theories of reading practices hold that reader engagement is necessary in the mental process that “completes” characters. If this is true, then in a fundamental way, while texts may be fixed, characters, outside their texts, are not.
Literature exposes the reductive nature of the law’s treatment of characters, and its simplistic view of the proper scope and implementation of independent copyright protection. The Article concludes that copyright law would do well to take account of the ways in which literary texts and theories reveal characters to be much more complicated than copyright law currently contemplates. Although literary insights into character do not themselves require either expansion or contraction of protection — dependent as reforms are on policy concerns endogenous to copyright — they do fundamentally change the nature of the inquiry. These insights expand the law’s understanding of characters and highlight theoretical and doctrinal implications of the confusion currently stymieing character protection under copyright law.
Finally, this Article comes on the heels of several very high-profile cases. The issue itself — the scope and strength of copyright in literary characters — is one that remains vital in a landscape of cross-marketing, IP licensing, and sequel-driven literary and film franchises. In the past two to three years alone, major cases have been brought, or resolved, based on Harry Potter, The Hobbit, Betty Boop, Sherlock Holmes, and Holden Caulfield of The Catcher in the Rye. Yet other than two or three excellent student notes, scholarship in this area has not been sustained or focused on this topic in over two decades. A major rethinking of the doctrines in this area is necessary, and timely. This Article aims to launch a conversation that will help to revitalize the flagging scholarly discussion in an area that is of critical importance to the entertainment, publishing, and gaming industries, as well as a crucial source of livelihood for authors and creators.