Imitation is the sincerest form of flattery. When it comes to copyright law though, imitation can land you in court.
Just ask J.D. Salinger's biggest fan. Swedish author Fredrik Colting, working under the pen name J.D. California, wrote his own novel as a tribute to Salinger's classic tale "The Catcher in the Rye." Salinger sued Colting for copyright infringement, claiming that the new work was a rip-off.
Fan Fiction Goes "A-Rye"
Salinger's epic "Catcher in the Rye" is a story about the teenage prep school run-a-way Holden Caulfield, who spends days wondering aimlessly around New York. Colting's new work, titled "60 Years Later: Coming through the Rye" is a story about the elderly retirement home run-a-way "Mr. C.," who spends days wondering aimlessly around New York. Despite the age difference, the similarity between the two characters is hard to miss.
Salinger sued Colting and his publisher for copyright infringement. Copyright infringement occurs when a protected work is copied, distributed or made into another work without the copyright owner's permission. Salinger claimed there was so much similarity between "60 Years Later" and "Catcher in the Rye" that the new book illegally infringed upon his copyright.
Fair Use is Fair Play
Colting's lawyers argued that "60 Years Later" came within a copyright law exception called "Fair Use." The fair use exception permits copyrighted work to be used without the author's permission for purposes like teaching, comment, criticism, research and news reporting. Colting argued that his book came within the fair use exception because it was a comment, criticism or parody of Salinger's book.
A New York federal judge rejected Colting's argument. The judge compared the two novels to see if the later work added something that transformed the original work into something with a new meaning or message. Instead of being a comment or criticism on the original book and its character, the court found that the new work simply repeated the same themes and character traits made famous in the original work.
The court also noted that Colting himself publicized his work as being a sequel and tribute to "Catcher in the Rye," rather than a parody or critique. The court concluded that Colting's novel was a derivative work that likely infringed upon Salinger's copyright. The judge issued an injunction to block the publication of Colting's book. Colting has appealed the judge's decision.
Copyright infringement lawsuits are decided on a "case by case" basis. Each one requires close inspection by the courts, and it is difficult to draw bright-line rules that apply to all cases. However, the following offers some basic tips to help keep your fictional characters out of court:
- Copyright registration isn't required for protection. An author's legal copyright protection arises as soon as the original work is put in a tangible form
- Registration is required for court action. You must register your work with the US Copyright Office though if you want to sue for infringement
- You can register your work online at the Electronic Copyright Office for $35. Copies of the work must also be deposited with the Office for filing with the Library of Congress
- To give notice of copyright ownership in registered or unregistered work, put the copyright symbol, the year of publication, and the owner's name on the work. Example: © 2009 Jane Doe
- Copyright protection doesn't apply to ideas, facts or methods, but it applies to the written, audio, or visual work in which these things are expressed
- Names, slogans, logos and titles aren't copyrighted, but they could be trademark protected
- Fictional characters have legal protection. Taking someone else's character and putting them in a different story or setting can constitute copyright infringement
As reclusive as J.D. Salinger is, he was willing to make an appearance to settle this issue. J.K. Rowling of the Harry Potter books has also settled copyright infringement cases with authors unwilling to get permission to other people writing books about her characters, especially for their profit. Fan fiction, where fans of a work write stories about their favorites, also run a fine line of copyright infringement, but few have been served with legal papers.
Questions for Your Attorney
- Can a teacher copy chapters from "The Catcher in the Rye" for a class discussion?
- Is it okay for me to post fan fiction for fun, not profit, on the Internet?
- Can I be sued for summarizing someone's article in my online blog? What if I link to the original article?