Is Copyright Law Stifling Creativity?

Last week, a federal judge in New York issued an injunction precluding the publication of a novel based on J.D. Salinger’s “The Catcher in the Rye.” The new novel, by Swedish author Fredrik Colting, describes the adventures of the elderly “Mr. C,” a not-so-veiled pseudonym for Salinger’s famous “Holden Caulfield.” The federal court enjoined publication of the book in the United States after finding that it is a likely copyright infringement. The Salinger lawsuit illuminates a weakness in copyright law that threatens to undermine copyright’s central purpose-promoting creativity.

J.D. Salinger

American law differs from law in Europe (and elsewhere) by not granting-except in limited cases-any “moral rights” to the creator of an artistic work. Moral rights are designed to protect the integrity of a work; for example, moral rights could stop a television station from editing a movie in ways the director believes undermine his artistic vision. Copyright law, however, has no such interest. The Copyright Act rests on Congress’ authority under the United States Constitution “to promote the Progress of Science and useful Arts, by securing for limited times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Thus, the purpose of copyright law is to encourage creativity by giving artists, authors, and others the exclusive right to benefit from their creative efforts for a limited period of time.

Copyright law, then, incentivizes the creation and dissemination of new works. Without copyright law, U2 might not make music. And even if they did, the band might not make any effort to disseminate the work publicly; there would be little or no economic incentive to do so since the songs could lawfully be copied and distributed by others for free. But with copyright law, U2 has reason to make its works available worldwide, and now the means to own half of Ireland.

There are, of course, limits to the temporary monopoly given to copyright authors. Some uses of a copyrighted work are deemed fair, and thus lawful, even without permission from or payment to the copyright author. Because of this “fair use” doctrine, I can sing “Happy Birthday”-a copyrighted musical composition-to my daughter without being liable for copyright infringement. The “fair use” doctrine makes copyright law workable-without it, we would all be engaged in a string of infringing acts every day of our lives-and it is the primary issue in most copyright lawsuits.

But in many cases, application of the “fair use” doctrine has become divorced from the purpose of copyright law. The Salinger case looks like the latest example. Because of case law, the parties there will focus a great deal on whether Colting’s work is a parody of Salinger’s work, because the Supreme Court has held that parody-using a copyrighted work to the extent necessary to criticize or mock it-is entitled to substantial First Amendment protection. But before a court even gets to that question, a more fundamental inquiry is in order: Does allowing novels like Colting’s undermine copyright’s goal of encouraging creative works? It is not clear that it would. Colting’s work would not harm the economic value of Salinger’s; it is hard to believe that people will see his work as a substitute for “The Catcher in the Rye” and buy the former instead of the latter. If anything, Colting’s work would likely increase Salinger’s sales. Thus, it is virtually impossible to imagine that allowing another author to borrow from Salinger’s work in a new novel would have dissuaded Salinger from writing and publishing “The Catcher in the Rye” in the first place. Applying copyright law to Colting’s novel appears unnecessary; Salinger would likely have written and disseminated “The Catcher in the Rye” regardless of whether the Copyright Act allows Colting’s work to be published.

We can sympathize with Salinger’s desire to keep other authors from using his characters and novels in ways he does not like. But copyright law is not supposed to have an interest in Salinger’s desire to shield his work from disrespectful treatment or use by artists that Salinger believes are unworthy of his masterpiece.

We are left, then, with an ironic and unfortunate result: a law that is designed to encourage creative works has been used to stifle one author’s creativity-to ban his book, at least temporarily-even while the decision would do nothing to encourage creative works by Salinger. In this case, it seems, copyright law has failed.

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