Sacrosanct Characters and Ideas?
rs at robertsheridan.com
Mon Feb 8 10:44:06 PST 2010
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
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
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?
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.
J.D. Salinger's complaint
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
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
This article appeared on page *A - 14* of the San Francisco Chronicle
© 2010 Hearst Communications Inc.
More information about the Conlawprof