These ramblings pick up from the previous column, which commented on the recent case against Richard Prince, who was sued for copyright infringement by the photographer Patrick Cariou.
These ramblings pick up from the previous column, which commented on the recent case against Richard Prince, who was sued for copyright infringement by the photographer Patrick Cariou. The presiding judge, Deborah A. Batts, sided with the plaintiff, and the case is now on appeal. Since some curious "evidence" has come to light, with no small bearing on the case, a brief follow-up seems in order. While "evidence" may not be entirely appropriate to describe this new discovery, is coincidence any more accurate? As always, you'll have to judge for yourself, but here goes.
In the early summer of 2009, the writer J.D. Salinger, most famous for his novel, The Catcher In the Rye, and just as well-known for being a recluse who refused to publish any writing in the last 45 years of his life, prevailed in his suit against a Swedish writer for copyright infringement. The author, Fredrik Colting, had produced a book he titled 60 Years Later: Coming Through the Rye, using the literary alias John David California. The book was published in England, but the ruling effectively blocked its subsequent appearance in the United States. In Colting's version of the story, he advances characters from The Catcher well beyond the temporal frame of the original novel, set in a future where its once youthful protagonist, Holden Caulfield, is now well over 70 years old, and referred to as "Mr. C." Despite transforming the character from a young to an elderly man, Colting identifies him as the invention of Salinger, though at a distant point in his life, something which Salinger himself never attempted. Even using a pen name, Colting in no way intended to deceive anyone who might purchase the book, thinking it was a sequel that might in fact have been written by Salinger.
What, if anything, does this have to do with the case against Richard Prince? Well, as it so happens, the judge in the Salinger case was the same judge in Cariou vs. Prince: Deborah A. Batts, of the U.S. District Court in Manhattan. In her ruling against Colting, as reported in the New York Times of July 1, 2009, the judge was firm, insisting "... it can be argued that the contrast between Holden’s authentic but critical and rebellious nature and his tendency toward depressive alienation is one of the key themes of Catcher. It is hardly parodic to repeat that same exercise in contrast, just because society and the characters have aged."1 To begin a counter-argument, why exactly is it that a work has to satisfy a definition of parody to be considered transformative? Is the artist who reinterprets or reexamines the work of another only protected from the law if they can be dismissed as a parrot, and a mocking one at that? This is simply unreasonable. The only travesty would appear to be on the part of the law itself. Artists can't always be called upon to add a mustache to the Mona Lisa. Now let's think about that "just because" for a moment: "just because society and the characters have aged." If the span of 60 years is not enough time to have passed for our view of the world to be re-imagined in an entirely new way through the lens of a familiar literary character, then how long do we have to wait? More than half a century is not an insignificant amount of time to have elapsed. It seems a marvel that Salinger himself was yet in this world, but there he was, at the age of 90, suing someone for writing a book that he hadn't, or couldn't, or simply didn't care to.2 This was his prerogative, and maybe this sort of annoyance kept him alive, gave him something to occupy his mind. If Salinger hadn't forfeited his intellectual property rights legally, then maybe they had been surrendered intellectually. In The Catcher, its author ardently hopes for things to stay the same, to remain in place, just as they have always been. This yearning is in a sense an expression of something already lost. By the end of the novel, Holden Caulfield hasn't appreciably matured. Perhaps, as some parents may feel towards their children, Salinger never wanted Holden to grow up. This we will never know. Holden was more than a character to his creator. Salinger identified with him and to some extent believed that he existed. When a proposal to turn the book into a Broadway play was once put forth, the author said he would consider the possibility, but only on the condition that he played the lead part. Subsequently refusing the offer, Salinger insisted, "I cannot give my permission," and added, with genuine or mock trepidation: "I fear Holden wouldn't like it." Life goes on, whether we want it to or not. Salinger passed away about five months after the suit was heard. A once censored book, perversely enough, was made to censor another. And what of Judge Batts? Having gone on to preside over the Prince case we might wonder if she is, how shall we put this, less than receptive to works of art and literature which quote from and expand upon others that came before? Does she think it's stealing? Does she always think it's stealing?
Back to The Catcher.
Often in cases involving copyright infringement the argument is made that someone has been deprived of their living, of their creation, by someone who has usurped their work. (Even when more than 65 million copies of a book have been sold.) And yet for Salinger, who hadn't published anything in decades, The Catcher wasn't exactly a Harry Potter franchise. There were no sequels, no movies—despite intense interest, from Marlon Brando and Jerry Lewis to Steven Spielberg and Harvey Weinstein (such is the passage from old Hollywood to new). J.K. Rowling was herself no stranger to unwanted advances, as she fended off accusations that parts of her stories were thematically derivative of those of other writers. Happily, she wielded a heavy sword backed by billions of corporate pounds, and her would-be snatchers and dementors were dispatched as if by a magic spell. But for all of Rowling's productivity over the course of seven installments, a story milked more than the only cow in the barn, compared to Salinger's one perfect book, it's clear that as far as literary consequence is concerned, J.K. is no J.D. At the time of his death in 2010, Salinger hadn't set any new books on the shelves since 1965. That year, Richard Prince would have been 16—the same age as Holden Caulfield—and Judge Batts would have been 18. They might well have read the book as teenagers, and it may even have an important place in their lives, as it does for others. George H.W. Bush claims to have been greatly inspired by the book, and it tragically bedeviled Mark David Chapman.3 Maybe this book isn't truly owned by one person, but belongs to everyone—for better and for worse. This, of course, is the public domain, albeit understood in terms of its emotional resonance. The Catcher In The Rye is one of the great American books of all time, and it's certainly worth reading again. Which brings us back to Prince, and also to the idea of "catch as catch can." While the exact origin of the phrase is open to debate, it's generally considered to mean: inventing something, or finding a solution to something, with whatever's at hand.
Consider a recent, somewhat elusive work by Richard Prince, his facsimile version of the first edition of J.D. Salinger's The Catcher In The Rye. Although the two books physically appear the same, having identical cover artwork, with both Salinger's and Prince's being dedicated "To My Mother," there are a number of differences between them, most obviously the author's attribution. Rather than "a novel by J.D. Salinger," we see: "a novel by Richard Prince." Is this a comment after-the-fact on these cases, presided over by the same judge? Or just one of life's great coincidences? In its one-on-one relationship with an original, this work is classic Prince, as good as anything he's ever come up with. A doppelgänger, an object of his affection? Apparently Prince considers his version of The Catcher to be a sculpture, a work of art. On the back flap of the dust jacket there is an author's note in which he is quoted as saying, "I worked on The Catcher In The Rye, on and off, for ten years." Opposite the dedication page, © Richard Prince is printed, and there is a notable disclaimer: "This is an artwork by Richard Prince. Any similarity to a book is coincidental and not intended by the artist." Judge Batts, of course, may be in some disagreement. But would it really come as any great surprise? J.D. Salinger, for his part, doesn't know and doesn't care. Alienation—the estrangement between the self and the world—will always be with us. And there is no greater estrangement than leaving this world. Intellectual property rights don't expire with the person, and The Catcher In The Rye will live on after Salinger, as all great literature and art does, though perhaps in ways he never expected. "People," after all, "are always ruining things for you."4
1. Sewell Chan, "Judge Rules for J.D. Salinger in ‘Catcher’ Copyright Suit," New York Times, July 1, 2009.
2. The suit was settled with the Salinger Estate just over a year ago. While Colting may not publish his book in the United States or Canada, once The Catcher in the Rye enters public domain he is free to do so. This will be in 2046. In the meantime he is allowed to distribute and sell the book outside of North America. He also agreed to the removal of Coming Through the Rye in his title.
3. On Dec. 8, 1980, when Mark David Chapman shot and killed John Lennon in New York, he had with him a worn copy of The Catcher In The Rye, inside of which he had written, "Dear Holden Caulfield, From Holden Caulfield, This is my statement." He was reading from the book when the police arrived on the scene, and his obsession with the book was cited by his defense when he was on trial for the murder.
4. Richard Prince, The Catcher In The Rye, American Place, New York, p.114.
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