Colting Caught in the Rye, with Friends.

An expedited appeal to the 2nd Circuit {09-2878 by the author known as J.D. California} of the injunction against his unauthorized sequel to Salinger has garnered several amici, including some IP Law professors.  As briefs by amici-teachies tend to be, this one is a position paper on the fair use/transformative test and against a presumption of irreparable harm when infringement is likely.  In sum, it argues that a likely fair use defense must trump a presumption of non-economic harm if drawn from the likelihood that the derivative work infringes the original.

The profs challenges the presumption of irreparable harm, in sort of a say-it-ain’t-so manner. Where likely infringement can be shown, these learned amici had to acknowledge that many Circuit cases permit that presumption.  They stare down those decisions as being “no longer compatible with controlling law,” viz. MercExchange.  To stretch that incompatibility contention further, they cite a recent 5-4 Supreme Court decision on environmental policies and law, which I for one have a hard time believing translates to First Amendment and Copyright clause cases. Also, the reversal in that NEPA case was based on the 9th Circuit being “lenient” in displacing the “likelihood” of harm with the “possibility” of environmental harm. Winter v. NRDC, 129 S.Ct. at 375. Note too, that the majority in Winters never cited MercExchange, suggesting that IP and NEPA considerations are unrelated.

MercExchange regards whether a presumption of harm, appropriate in the pre-proof setting of a TRO, remains appropriate when all the evidence has been heard and liability adjudged.  MercEx said ‘no,’ and reversed the rule of automatic, permanent injunctions.  In the TRO setting though, the court is charged to assess likelihoods, use presumptions, and balance the four-factors.  The amici-professors argue that each factor is mandatory, and that a copyright owner must ‘win’ on each factor.

Also, the amici-professors argue, perhaps in a transformative or mash-up way, that the harm prong of the preliminary injunction assessment is trumped by the harm inquiry of the fair use defense.  The fair use inquiry “must take account not only of harm to the original but also of harm to the market for derivative works.” Campbell v. Acuff-Rose, 510 U.S. at 590.   Amici were dismissive of the opinion of Salinger’s agent about how much would be paid for the author to publish his sequel to “The Catcher.”  Mainly though, the contention is that the author’s exclusive right to create derivative works is overwhelmed by the potential worth of transformative works, “even if the new author is ultimately a poor craftsperson and fails to reach his or her audience.”  Even “poor” Derivation, if transformative, is assigned value.

In an argument that practically concedes that the to-be-commercialized derived sequel is, on a literary scale, substantially similar to the original, amici contend that it has fair use value as critical comment on the original author’s work.  Instead of a derived tale of a later-life Holden, the unauthorized sequel embodies a foundation of similarities over its root, subtextual commentary on Salinger’s work.  “Because of the widely recognized link between the book and its creator, however, it is particularly appropriate to repurpose Catcher to engage with the cultural relevance of its creator.”  That re-purposing is fine, when literati are waxing philosophically over glasses of wine, but to argue that commentary is commercially distributable and insulated from the copyright owner’s exclusive rights is a hard sell.

Rather than try to sum up the profs lengthy arguments about works that are “transformative,” suffice it to say this.  Definitionally, and perhaps legally, the term transformative connotes metamorphic changes, not a re-write or a do-over.  Transformative work cannot equate to plagiarized or substantially derived work.

Last, the amici-profs argue that Salinger’s rights as author and copyright owner were given too much worth, to the point that his statutory rights were equated to droit suite.  “By framing the question as one of Salinger’s interest in leaving his artistic vision untouched, the District Court imported moral rights concepts …[which] are not part of U.S. Copyright law.”  Plainly; but, to argue that a later-writer deserves a “right” to publish for profit a deriviative work, despite the author’s exclusive rights, is to elevate fair use to a moral right of that later-writer. 

In a contest between the author’s rights as the copyright owner, and the fair use protection for the writer of a derivative work, it’s less a matter of droit suite than a contest over who has the right to profit from the author’s original work.