Earlier this month a judge ruled to indefinitely ban the publication in the United States of an unauthorized sequel to J. D. Salinger’s “The Catcher in the Rye.” Frederick Colting, a Swedish author, had published a new novel titled “ 60 Years Later: Coming Through the Rye,” featuring a main character named Mr. C, age 76, whose character is very reminiscent of the personality of Holden Caulfield, the young protagonist of Salinger’s novel. Colting claimed that the new work was actually a critical parody that had the result of transforming the original work and therefore should not be considered a violation of copyright protection, but rather an example of fair use. The judge decided that the new novel so closely mirrors Salinger’s classic without adequate parody or critique, and therefore it violates copyright laws and should not be published.

At first blush, this decision appears to be a victory for authors who wish to protect their works from those who would unfairly and without permission use/steal them. But is this ruling merely a benefit to the original author, or is the protection afforded Salinger actually a form of censorship of the young author and his own creativity? And if it is censorship, is that not true irony, given the fact that “Catcher in the Rye” was itself censored more than almost any other book in recent history and owes much of its commercial success to that censorship?

The answer may not be clear. We must look to copyright law and to what can and cannot be copyrighted. Copyright law is a form of intellectual property law and protects literary, dramatic, musical, and artistic works. Included in literary works are poetry, children’s books, novels, non-fiction, textbooks, art books, photography, etc. A work is under copyright protection the moment it is created and fixed in a tangible form and does not have to be published to be under copyright protection. Some things that cannot be copyrighted, however, are titles, names and ideas.Also there is the area of “fair use.” Fair use limits the amount of material others may use without securing permission of the original copyright holder. Parody is included as fair use, so that is an author borrows from another author with the idea of creating a parody of the work for the purpose of poking fun at it or commenting on it, then the second author may make use of the first author’s work without permission.

The position can be put forth that the story line of “Catcher in the Rye” is an idea, and if so, cannot be copyrighted. Not allowing Colton to use Salinger’s ideas in creating a derivative work then could be described as a form of prior restraint of the creative process, which is considered illegal. It seems it may be illogical and unenforceable to state that existing art cannot influence the creation of new art. The case can also be made that Colting’s novel was “commenting upon” Salinger’s novel in the form of parody and therefore does not violate copyright law.

The case may yet go to trail, and this ruling may stand or be overturned. It will be very interesting to follow what the final disposition of this suit may be.In another recent copyright infringement case, the judge’s ruling went in favor of the new author of the derivative work. Houghton Mifflin published a novel titled “The Wind Done Gone.” It is a parody of “Gone with the Wind,” using the same characters but telling the story from the perspective of the slaves. SunTrust, acting on behalf of the copyright holders of “Gone with the Wind,” sued Houghton Mifflin unsuccessfully, and the parody was allowed to be published under the terms of fair use.

The subject of authors’ rights has also been at the center of the class action law suit filed by the Authors Guild and others on behalf of authors and publishers against Google which used excerpts of works without permission for a significant number of months until the suit was filed. A settlement has been reached in that suit so that authors whose works were used without their permission will be compensated and, going forward, a system will be set up for authors to opt in to a database Google will offer for individuals and libraries wanting access to published works. The copyright owners will receive monetary compensation each time someone uses a work from the database.As the Internet makes proprietary control over intellectual property more and more difficult to achieve and enforce, copyright laws and expectations for copyright protection will continue to change to take into consideration the explosion of technology and the ease of access to content and the sharing of information that follows. Authors and all creative people will need to pay attention to new problems as they arise and work together to find ways for the creative process to be both supported and protected.