Vogt on Fiction and Fair Use in the Internet Age: When Rights Collide

Vogt on Fiction and Fair Use in the Internet Age: When Rights Collide


In Salinger v. Colting, 2009 U.S. Dist. LEXIS 56012 (S.D.N.Y. July 1, 2009), reclusive and fiercely protective novelist J.D. Salinger enjoined copyright infringement and common law unfair competition of The Catcher in the Rye and character infringement of iconic Holden Caulfield. The defense of fair use by parody failed. Should it have? Is Fredrik Colting’s novel 60 Years Later entitled to the same protection as a critical essay or academic article? M. Diane Vogt analyzes this issue in the age of rampant global piracy. She writes:
 
     District Judge Deborah A. Batts analyzed Colting's 60 Years Later: Coming Through the Rye pursuant to appropriate legal standards. She concluded that Catcher and Caulfield are protected by valid copyright and claims for infringement lie. She also concluded that 60 Years copied Catcher, there is substantial similarity between 60 Years and Catcher, and thus 60 Years infringed Catcher.
 
     . . . .
 
     Despite not addressing the flagrant infringement of fan fiction or firmly denouncing such infringement, the opinion's language makes clear that fan fiction such as 60 Years remains impermissible in the absence of another legally enforceable exception to established copyright law. In this case, Colting unsuccessfully argued that 60 Years and its protagonist, Mr. C. (Holden Caulfield grown old) constituted fair use of Salinger's copyrighted work because 60 Years is a parody of Catcher, tantamount to a critical essay. Judge Batts properly disagreed.
 
     . . . .
 
     When is it legally permissible to copy another's work? This question is raised with increasing frequency now that technology makes it possible to copy anything, any time, and reproduce it anywhere, for the benefit of any one. All aspects of intellectual property law, including copyright protection for fiction and nonfiction through parody and fair use, are more complicated to analyze than they should be. Each case is fact specific. The defendant's intent matters less than the specific product he's published. That is, whether your client intended to make an improper use of protected materials or not is irrelevant. The relevant inquiry is whether the challenged material in fact infringes upon another's bundle of intellectual property rights, and it too often does.
 
     Most practitioners know that copyright attaches to every expression, once the material is actually expressed. For authors using words, this generally means when the words are expressed electronically, either online or using an individual word processor. Registering copyrights provides for the collection of additional damages in the case of infringement, but provides no additional copyright protection. Thus, similar to a technical civil battery where the least unpermitted touching is a battery; the least unpermitted taking is civil infringement. If the defendant has copied and reissued any set of words produced by another, in the absence of a valid exception, his conduct is an improper violation of copyright.
    
(footnotes omitted)