The best client you could have if you are an intellectual property lawyer is
JD Salinger. The second best is
JK Rowling. This is because they are both extremely litigious, guarantee great publicity, and because their aura of great virtue, together with the belovedness of their creations, helps them win.
Salinger
is now challenging the right of
a Swedish author to publish in the US a thinly veiled sequel to
Catcher in the Rye; Rowling
won her recent case against an author who wrote a guide-like reference work about the Harry Potter series. In the past, the 90-year-old Salinger has sued almost everybody else who has sought to benefit from or exploit Salinger or his work.
Salinger and Rowling are examples of the current anomaly in which intellectual property becomes ever more protected in traditional media, and ever more impossible to protect in digital media.
I am writing this in the air so I cannot check if jdsalinger.com or holdencaufiled.com have been taken, but, if they aren’t, I will try to remember to grab them soon after I land. Alternatively, I will try for iamholdencaulfield.com—that could work, nicely. (At some point, we have all dreamed of being Holden Caulfield.)
The Swedish author’s book, already published in the UK, apparently picks up Holden’s story 60 years after Salinger’s version left off. This will, in all likelihood, be ruled as an unacceptable use. The pseudonymous Swede will be found to be unfairly benefiting from the use of Mr. Salinger’s property. All well and good and perhaps even reasonable.
(JD Salinger, 1951, AP Photo)
But on iamholdencaulfield.com I can invite visitors to the site to write their own versions of what might have happened to Holden in the intervening years (perhaps I will link to the British version of the Swedish author’s book). This is fan fiction of the kind that piggybacks off many best-sellers and pop-culture characters with obsessive followers—and Catcher in the Rye, at 22 million copies and counting, has always had its obsessives. It’s probable that such explicit Holden sites and Holden fan fiction already exist—so much for my new pastime. Certainly Harry Potter is as finely documented on the web as Harry and friends could ever be in the reference book that Rowling has blocked from publication.
Rowling and Salinger and their lawyers do not pursue such possible web infringements because it is too penny-ante and time-consuming, and victories on the web tend to do nothing to discourage other infringements on the web. If Salinger and Rowling have deep pockets, they are not deep enough to sue the entire Internet.
The result is that, more and more, two worlds of intellectual property exist. One becomes increasingly a pretend world, or a world of principle but not of meaning. Lawyers and courts and obsessive creators (who inspire obsessive fans) and their heirs can have their way with books and expensive video productions, while a new sort of popular culture, unrestrained and unbothered, is being created. Indeed, the former becomes, in contrast, much less interesting as the latter becomes more popular (or populist) and anarchic.
The world is as it is, authors, lawyers, ostriches, not withstanding.
More of Newser founder Michael Wolff's articles and commentary can be found at VanityFair.com, where he writes a regular column. He can be emailed at michael@newser.com.
