Thursday, July 2, 2009

Spin-off control

Yesterday in the U.S. a federal judge effectively banned the sale or distribution of a self-styled 'sequel' to The Catcher in the Rye, following a civil action by its author, J.D. Salinger. The book in question, 60 Years Later Coming Through the Rye, by the Swedish writer Fredrik Colting (writing as John David California) will not now be available in the US. The case sheds an interesting light on the increasingly important question of spin-offs, parodies and other forms of literary piggybacking.

The key issue in court seems to have been whether Colting's book was a 'sequel' - in other words, an attempt to carry on Salinger's original story, using his characters and their histories - or a parody. A parody would have been fine, because parodies fall under the broad legal umbrella of 'fair comment' ['fair use'] or criticism. A sequel, on the other hand, would probably have been seen as an infringement of intellectual property rights, not least because, while an author lives, there is always the possibility that he may want to produce a sequel of his own. American law and precedent also holds, perhaps tenuously, that parodies and sequels have different sources of commercial appeal: the sequel draws directly on the spirit and character of the original, whereas the parody creates a s character of its own - even if that character is a mockery (literally) of the original.

At first glance, Colting's publishing history would suggest that a parody was on the cards. The author of The Macho Man's Drinkbook: Because Nude Girls and Alcohol Go Great Together, is primarily known as a humourist. But the packaging, presentation and marketing of the book told a different story - as did the content of the book itself. As the court order put it, in suitably legal style: “While the court does find some limited transformative character in 60 Years Later, it finds that the alleged parodic content is not reasonably perceivable, and the limited non-parodic transformative content is unlikely to overcome the obvious commercial nature of the work.” So now you know.

That J.D. Salinger reacted litigiously to an unauthorised sequel should have surprised no one. And that the courts would uphold his complaint was always far more likely than not. To publish a sequel to a novel by a living author, other than one written by that author himself, is almost unprecedented. And even spin-offs and sequels to works by dead authors are usually cleared with the estate of the deceased, where one exists. The James Bond novel, Devil May Care by Sebastian Faulks, was a case in point. So what were Colting's publishers up to?

Perhaps I am cynical, but since this case hit the headlines, Colting's sequel has been selling very well, thank you - outside of the US. A legal brush with the famously inaccessible Salinger (he has not given an interview for 29 years) - or, to be more precise, his lawyers - is better than no brush at all. In fact, it's the kind of publicity no amount of money can buy. And, thanks to the Internet, there is nothing to stop Americans whose curiosity has been aroused, from purchasing their copies from any on-line retailer based outside the US. If you find that has sold out, that may be the reason.

Colting claims to have been shocked by the ruling of the court, but I wonder if finding himself the author of a banned book is really so disagreeable, or so unrewarding. He will not even have to hire bodyguards, like others of his set, unless he is afraid a gang of superannuated Salinger groupies may track him down and handwring him to death.

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