New Essay by Dominic Smith
A new essay by faculty member Dominic Smith is available online at The Millions. The essay, titled “Letter of the Law: On J.D. Salinger, Unpublished Works and US Copyright,” discusses, among other topics, faculty member David Shields’ new biography of J.D. Salinger:
In the acknowledgments for Salinger, the new biography that accompanies the documentary about the reclusive lion of 20th-century literature, the authors state: “Most biographies include photographs of and letters to and from the biographical subject, but as in the case of someone as secretive as Salinger, photographs of Salinger and letters from him were extremely difficult to come by.”
David Shields and Shane Salerno are not the first Salinger biographers to be hampered by the author’s shadow life. In fact, current U.S. copyright law is bolstered by a former biographer’s clash with Salinger over access to the author’s unpublished letters. In the 1980s, Ian Hamilton excerpted from a slew of Salinger letters that had been donated to the archives of Harvard, Princeton, and the University of Texas at Austin. The letters were quoted extensively in a draft that went out to reviewers and that was planned for publication by Random House. When Salinger’s agent, Dorothy Olding, passed along an uncorrected proof to the author in late 1986, he formally registered his copyright in the letters and told his lawyer to object to the publication of the book until all contents from the unpublished letters had been removed. Hamilton acquiesced and revised many of the letter excerpts into close paraphrases. For example, “like a dead rat…grey and nude…applauding madly” became “resembling a lifeless rodent…ancient and unclothed…claps her hands in appreciation.” The artfulness of such paraphrases aside, they didn’t appease Salinger and he sued Random House for copyright violation, breach of contract (Hamilton had signed copyright forms at the archives in question), and unfair competition (it was sometimes ambiguous as to whether the words were Salinger’s or Hamilton’s; why would consumers buy actual books of Salinger letters?)
The United States District Court for the Southern District of New York decided Salinger had enough of a case to issue a temporary restraining order pending an appeal. In any determination of fair use or copyright infringement under U.S. law, a judge looks at four factors: the purpose and character of the use; the nature of the copied work; the amount and substantiality of the use; and the effect of the use upon the work’s value.
In 1986, the Court of Appeals ruled in Salinger’s favor and thus began a new era in U.S. copyright law. Not only were unpublished works on their way to becoming covered under the fair use constraints and privileges, but a bright line was also drawn around unpublished letters. In subsequent copyright case law, a distinction was made between the vehicle of a letter (the paper it’s written on or the virtual notepad of an email) and the expression of the words themselves. This same logic is applied to unpublished creative works.
Here’s how it works: Say I write you some letters or stories in college and then go on to become famous. Years go by and we fall out of touch. One day you’re cleaning out your attic and you find a stash of my pithy dispatches from the dorms. You decide to sell them to an archive and they happily buy them and make them available for researchers studying my oeuvre. What the archive has actually bought are the pieces of paper and single-serving rights for researchers to consume them. The words themselves, my use of vocabulary and vivid imagery, these continue to remain my property. Not only that, but for up to 70 years after my death, my estate can continue to control the ownership of those words.
Given the impact of the Salinger case on copyright, for some years there was uncertainty about whether or not a writer could quote at all from unpublished letters, regardless of where they resided. In Wright v. Warner Books, a subsequent lawsuit, the Second Circuit Court of Appeals clarified that some amount of quotation from unpublished works, including letters, could qualify as fair use. The Copyright Act was then updated to include unpublished materials.
Unlike Hamilton’s biography, which was shelved and then reworked as In Search of J.D. Salinger, the new book by Salerno and Shields breaks new ground and pushes the boundaries of the sometimes rigidly imposed set of U.S. copyright rules. Salinger contains excerpts from dozens of the author’s unpublished letters. There’s a hint in the book that cooperation from Salinger’s children was part of the project at one point, though later withdrawn, so we can’t know for sure what kinds of permissions were granted. But given the secretive, almost hostile nature of Salinger and his subsequent estate’s relations with the wider world, it would be fair to assume that none of these excerpts came with the express permission from the author or his heirs. Depending on how you look at it, including extensive excerpts from those letters is either an invasion of Salinger’s privacy or a coup for fair use, a boon for biographers working in archives everywhere.
With an abundance of caution, I recently sat with the Salinger archive at the Harry Ransom Center at the University of Texas at Austin. For a novelist treading water in the middle of a draft, an archive is both an escape and a frustration. It might be fun to see the prosthetic eye Denis Johnson wore during his walk-on role in the film adaptation of his book Jesus’ Son (yes, the Ransom Center owns that motif from “Emergency”), but it doesn’t get me any closer to the end of my own book.
There are two Salinger archival boxes, both nondescript and smelling faintly of old typewriter ribbon. The reading room rules forbid you from removing more than one folder at a time from the document boxes, so the hungry archival researcher is forced to observe a measure of restraint. At most, you can walk briskly back and forth between the cart where the boxes sit and the well-lit wooden desks where you can plumb the sleeved documents for their secrets. I decided to skip the letters from Salinger to long-time friend Elizabeth Murray, from 1940 to 1963. According to the finding aid, they dwell on such things as the breakup of Salinger’s first marriage and his relationship with Oona O’Neill, daughter of Eugene O’Neill and the fourth wife of Charlie Chaplin. Instead, I went straight for the story manuscripts.
The first was the manuscript for an unpublished story named “Birthday Boy,” about a young man in the hospital for depression who is visited by his girlfriend on his birthday. Apparently from the early 1940s, the story is fledgling and uneven, as if Salinger hasn’t quite found his stylistic swagger. On the top right hand corner of the first page are some notes in red pencil. They’ve been partially erased and then crossed over with a regular lead pencil. I can’t be sure, but the red-penciled letters look like the rejection comments of an editor.
The second manuscript was for an early draft of a story called “I’m Crazy,” which eventually appeared in the December 1945 issue of Collier’s. It was also the literary debut of Holden Caulfield, who would go on to become the endearing and angst-ridden protagonist of Catcher in the Rye.
Despite the fact that some degree of quotation from unpublished works has won legal ground under fair use, most archives insist that no quotation is allowed without permission from the estate and the archive. If you follow this line of reasoning, as Hamilton was forced to do, even paraphrasing too closely is an infringement. According to this notion of copyright, I may report facts and ideas, but not expression. As one archivist put it in an email: “only if you are speaking generally about the manuscripts (supplying a description, for example)” do you not need permissions.
Curiously, though, under all three sets of rules — copyright, fair use, and most archive policies — I am free to use my iPad to take good resolution images of unpublished manuscripts so long as I don’t share them publicly. Who can say if this extends to the privacy of my own home where I might convert an unused closet into a Salinger shrine? Such is the fickleness of U.S. copyright law.
Although I won’t or can’t or shouldn’t quote directly from the unpublished manuscripts, nothing prevents me from describing them in general terms. So I can, for instance, tell you that in the fledgling draft of “I’m Crazy” in which Holden appears for the first time, the narrative is in third person. When it is published in Colliers, the narrative stance switches to first person. And by the time Holden crosses the transom into Catcher, as we all know, he’s found his full-blown voice, a blend of angst and innocence that has captured readers for generations. (The book continues to sell about half a million copies a year.) That Holden first walked onto the novelistic stage in third person might come as a profound shock to Salingerites — it did to me. A simple point of view switch is par for the course in many burgeoning novels, but this one is particularly momentous. Here, in the archive, we see Salinger before he’s broken through. We might have assumed that Holden had come to Salinger fully formed, as if through a divine channel, but the sobering news — and the glimmering gift of such archives — is that he emerged fitfully and through a series of false starts.
Perhaps one day soon the morass that is U.S. copyright law will be simplified. At the very least, maybe more of us will understand it. In preparing to write this piece, I reached out to an award-winning novelist, a respected journalist, an academic, and a staff member of an archive. They all chimed in with slightly different answers about whether or not unpublished letters and creative work could be quoted, paraphrased, or described in general terms. If writers and researchers can’t absorb the law, then the lay public has very little chance. Chances are, though, the reading public could care less about the fate of unpublished stories and letters when so much new Salinger work is allegedly about to hit the streets. Salerno and Shields assure us that between 2015 and 2020, we’ll see, among other things, five new Glass family stories and fiction that further fleshes out the story of Holden Caulfield. That’s better than waiting for the clock to run out on Salinger’s copyright on former work. I’ll take that over a first run of “Birthday Boy” in the pages of The New Yorker in the year 2083 any day.