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If a book meets a book coming through the rye

By Rebecca Tushnet

A couple of thoughts about the Holden Caulfield decision:

The court?s insistence that a parody must criticize the original specifically seems inconsistent in spirit with the Second Circuit?s most recent Koons decision, which involved a finding of transformativeness when Koons copied images from fashion magazines. Koons claimed to be critiquing the genre and explicitly disclaimed interest in the particular image. (Calling the legs ?anonymous,? Koons insisted that the legs were ?a fact in the world.? ?[T]hey are not anyone's legs in particular,? and thus he had the right to copy them to critique modern consumption-oriented culture.) Perhaps the differences in medium (image/art world/collage versus text/publishing/single work used) mattered to the court, but yesterday?s decision relies far too heavily on Justice Souter?s unfortunate use of ?parody? to stand in for transformativeness. (There?s a Campbell footnote pointing out that satire can be fair use, but most subsequent cases ignore it.)

The court also rejects using The Catcher in the Rye to critique Salinger, because parody has to be targeted at the work and not at something associated with the work. Query: how would the Literal Total Eclipse of the Heart fare under this standard if the owner of the copyright in the musical work, as opposed to the owner of the copyright in the music video, brought suit? I think this question reveals the problem with limiting concepts of parody like this?works exist in context, and parody has to be able to embrace that context.

Relatedly, the court finds that the book doesn?t work as a critique because Holden?s depression and anomie were already part of the original text. This strikes me as a mistake of law ?in Campbell and in Suntrust, the courts found in the originals the elements highlighted by the respective transformative uses.

Quoting myself:

In a passage quoted by the Supreme Court, Judge Nelson?s dissent from the court of appeals opinion argued that the parody

. . . reminds us that sexual congress with nameless streetwalkers is not necessarily the stuff of romance and is not necessarily without its consequences. The singers (there are several) have the same thing on their minds as did the lonely man with the nasal voice, but here there is no hint of wine and roses.

Note in particular how the opinion imputes the motivations of the narrators in the 2 Live Crew version to the narrator in the Orbison song. Because of the later song, we can recognize that Orbison's narrator has the ?same thing?-- sex--on his mind as the later singers ?.

And:

The Eleventh Circuit Court of Appeals held that Alice Randall's insertion of homosexuality, in the form of a gay Ashley Wilkes, into the world of Gone with the Wind was an important part of what made her book transformative. The court quoted Gone with the Wind's description of the Wilkes family as artistic and ?queer,? a term already widely used to describe homosexuals when Mitchell wrote the novel, to show that a basis for Randall's changes was present in the original. ? In other words, the court held that transformation consists of making clear or exaggerated what was opaque or limited in the original text.

The argument for transformativeness is that by showing Holden still whiny and useless in his dotage, the new book critiques the extent to which the original romanticized, or led readers to romanticize, his central characteristics: rather than being a sensitive youth on a significant journey, the passage of time reveals that Holden is merely a callow youth who grows into a callow man, calling into question a generation?s worship. The problem, that is, is the reader?s valuation of Holden?s characteristics ? just as the problem in Gone With the Wind was the valuation of whiteness/heterosexuality/Southern nostalgia.

In fairness to the court?s opinion, the idea seems to be that Holden's immaturity was sufficiently apparent in the original already, and thus not ?opaque or limited,? as I put it. But the fact that Holden became the hero for a certain segment of a generation suggests that it wasn't, in practice, apparent enough to avert all need for critique. A similar debate broke out over a fanvid based on Joss Whedon?s show Dollhouse: the fanvid presented Dollhouse as a show about rape, and half the commenters at the fansite Whedonesque thought that the fanvid didn?t say anything that the show itself hadn?t already said, because the show was clear that it?s based on rape?and the other half of the reactions were that the fanvid was unfair, because what happens in Dollhouse isn?t rape at all. There was very little recognition on either side that the fact that these two interpretations of the original existed in conflict indicated that the fanvid in fact had a critical message, intervening in a heated debate over interpretation.

Perhaps, like Marx?s history, literature always repeats itself?the first time as tragedy, the second time as farce. The question of this case is whether showing a tragic young man turned farcial in his old age, because he stayed still while the world moved around him, is sufficiently transformative to be commercialized. (Separately, I must note strong disagreement with the court?s idea, for which it gives no citation, that the ability to avoid licensing also works as an economic incentive to be taken into account in analyzing the fourth fair use factor, because the author?s knowledge that no one can add to his work?the moral right, that is?can induce him to create the work in the first place. There is simply no way to distinguish this concern for avoiding interpretation from concern for avoiding criticism/transformation, which we know is not to be taken into account in factor-four analysis.)

Full post as published by 43(B)log on July 02, 2009 (boomark / email).