Sacrosanct Characters and Ideas?

[Robert Sheridan]

The character and idea of God as a jealous, wrathful, vengeful, Old Man, 
who was given to ordering the sacrifice of children, whole cities, 
indeed the whole world, i.e. who was evil personified, to which Abraham 
objected vocally,  was not protected by copyright.  Thus the idea, 
perhaps even the character, has changed over time and generations. 

The followers of Jesus had no compunction against introducing a more 
merciful, just, and loving idea of the godhead, even if they took to 
multiplying entities to do so. 

Fair-use, some might call it.

Herbert Bloom, the estimable literary analyst, critic, and long-time 
Yale Humanities professor, suggested in "The Western Canon,"  (Harcourt 
Brace, 1994)  pp. 4-6,  that the author of the Old Testament books 
Genesis, Exodus and Numbers, was a Hittite woman who had first been the 
wife of a soldier named Uriah and later of a king named David (who had 
sent Uriah off to his virtually certain death in battle so he could 
marry his wife) who lived in the palace, or temple, of David and their 
son, later called King Solomon, the famous judge.

How else would the author, referred to by biblical scholars as the "J" 
(for use of the name Jwvh, or Ywvh) author, have known so much of 
Criminal and Family Law Procedure as to be able to suggest the 
separation of witnesses to detect inconsistencies, thus revealing 
collusion, and the truth, and the threat to cut the by now famous Baby 
in half, to inspire the real mother to self-sacrificingly reveal 
herself, and thus the truth?

Her name?  Bathsheba.  Living in the palace provides opportunity and 
time for devotion to developing stories, character, and for writing.  
Other scholars, for similar reasons thus suggest that the Iliad was not 
necessarily written by a blind male poet-singer called Homer but by a 
woman living in palatial circumstances.

Bloom thus suggests that people worship literary characters...and who 
else stops to think of this possibility and its implications?

The idea of Holden Caulfield, the youthful protagonist of "A Catcher in 
the Rye," was protected by his creator, J.D. Salinger, who recently 
passed away.

Other writers have attempted to use Salinger's boy-character and convert 
him to a grown-up man in the exercise of their creative imagination.

Can you do that in America? 

If inspired, can one write a book about  the fictional adulthood of the 
boys named Tom Sawyer or Huckleberry Finn?   Or are they still in 
copyright? 

Can Nikos Kazantzakis write about the unknown youth of a grownup, later 
deified, called Jesus?  See "The Last Temptation of Christ."  There was 
some controversy over this book and the resulting film, as I recall, but 
they weren't banned, so far as I know, at least not in America.  The New 
Testament character was not copyrighted by Matthew, Mark, Luke, and 
John, I suppose is the answer to the question whether it was modifiable 
by subsequent artists.

The ancient Hebrews didn't have copyright, I don't suppose, nor the 
First Amendment, to protect their thought and expression.

But America, we understand, does.

Yet an American court has ruled that it is improper to appropriate the 
character of Holden Caulfield, which belongs to Salinger, to the 
creative use (and profit) of another writer and the public at large who 
might be entertained or thought-provoked into wondering what kind of 
person H.C. might have grown up to be.

If one can appropriate God and change His essential aspects, then why 
not Holden Caulfield?

In America.

Perhaps because the copyright has not run out, but it is extendible for 
quite long periods, as observed a few years ago in the so-called Walt 
Disney case, by a tractable Congress and compliant Court.

Here's the opinion item which prompts the above rumination, thank you.

rs

SFGate


  J.D. Salinger's complaint

Roger Rapoport

Monday, February 8, 2010

J.D. Salinger may be gone, but his ability to persuade a New York court 
to ban Swedish author Fredrik Colting's novel "60 Years Later" makes his 
estate the center of one of the biggest intellectual property battles in 
the land.

Last year, Salinger and his literary trust persuaded New York Federal 
District Judge Deborah Batts to enjoin publication of Colting's homage, 
which profiles the dotage of both author Salinger and Holden Caulfield, 
the protagonist in Salinger's "The Catcher in the Rye." The New York 
Times Co., the Tribune Co., Gannett, the American Library Association 
and attorneys with the Stanford, UC Berkeley and Georgetown law schools 
have all filed amicus curiae briefs supporting Colting's appeal.

Batts' decision to ban the novel has enormous impact on the free speech 
rights of writers, critics and other creative artists. If the decision 
is upheld, authors, professors and anyone with an interest in the 
written word could be victim of this decision to uphold Salinger's 
belief that he alone controlled his characters' lives and their thinking.

The irony here is worthy of a great novelist. Why would Salinger, whose 
own work has appeared on many banned-book lists over the years, have 
wanted to silence a new author like Colting - particularly after "60 
Years Later" already was published in the United Kingdom? His suit is in 
line with the failed attempts of the literary estates like those of 
James Joyce, J.R.R. Tolkien and others to prevent the publication of 
reference works and literary criticism.

Traditionally the fair-use doctrine has allowed creative artists to use 
portions of a copyrighted work without permission for such purposes as 
criticism, comment, news reporting, teaching, scholarship or research.

But in the "60 Years Later" case, Batts bought Salinger's argument that 
because this depiction of Holden Caufield as a senior citizen infringed 
on his "Catcher in the Rye" copyright. In their amicus brief supporting 
Colting's appeal, the media companies argue: "The only harm appears to 
be to the pride of a reclusive author." The decision to ban Colting's 
book "defies common sense, and is not - and cannot be - the law."

Many examples of books drawing elements from such classic works as 
"Uncle Tom's Cabin," "War of the Worlds" and "Gone With the Wind" 
populate libraries. Salinger's argument - that his iconic character must 
be protected from copyright infringement - raises a much larger question 
for scholars drawing on great works for inspiration. Whether it's a 
novel like Colting's or a parody of Roy Orbison's "Oh, Pretty Woman," 
fair use remains the heart and soul of the creative process.

When Batts suggested from the bench that there was no need for readers 
to enjoy a new way of looking at Holden Caulfield because readers could 
simply read it "twice, or maybe five years later," she was giving 
Salinger what an amicus brief defending Colting calls "a monopoly on 
reassessments of Holden."

No such monopoly exists anywhere in copyright law. As Kevin Smith, 
scholarly communications officer at Duke University, puts it: "Judge 
Batts' logic would deprive each new author of those giants upon whose 
shoulders, Isaac Newton famously reminded us, we must all stand if we 
wish to see clearly."

Roger Rapoport is president of the Right to Write Fund, which defends 
the First Amendment rights of creative artists. To learn more, go to 
www.righttowrite.org <http://www.righttowrite.org>.

http://sfgate.com/cgi-bin/article.cgi?f=/c/a/2010/02/08/EDJF1BT74Q.DTL

This article appeared on page *A - 14* of the San Francisco Chronicle

© 2010 Hearst Communications Inc. 
<http://www.sfgate.com/chronicle/info/copyright/>