The Artful Jurist

The reclusive author of The Catcher in the Rye, J.D. Salinger, has died at age 91. The literary world bids farewell to one of the 20th century's most notable and eccentric writers.

Now we wait for the other shoe to drop.

The "shoe" to which I'm referring is the question over what is now to become of Mr. Salinger's long-coveted intellectual property. For years there have been rumors that he has written various stories that he locked away and wouldn't permit anyone to see -- let alone publish -- while he was alive. And then there were those who longed to turn Catcher, his iconic novel of a forlorn youth, into a movie. This, too, Mr. Salinger refused to allow while he was alive.

Well, now Mr. Salinger is no longer living and no longer here to guard the proverbial castle. And so opens a new chapter regarding his intellectual property...and what is to become of it.

As is always the case, our creations can outlive us for years. (Just ask Homer or Aristophanes.) But so, too, can copyright protection survive the mortals who created the intellectual properties it protects. Under current American law, copyright lasts for the life of the creator plus 70 years. So Mr. Salinger's copyrights are still very much intact.

Whether allegedly hidden stories are suddenly sprung from the vault, or Catcher becomes the next big Hollywood film project, is something that will depend entirely on whoever is now in control of Mr. Salinger's intellectual property. Sometimes it falls directly to heirs or will beneficiaries. Sometimes control is devised to a person designated as a literary representative of the estate. Either way, it's a whole new chapter for the works of Mr. Salinger.

I was watching a TV program the other day. Its topic was the legal issues surrounding unathorized digital downloading of music. Included in the show were various "people on the street" interviews, and one of the questions that was posed to the people was whether they believed it was okay to make copies of music recordings to share with friends. One interviewee acknowledged the rights of those who own the copyrights on the music, but then he also talked of what he saw as a competing interest -- the right to share.

The right to share? Did someone sneak in a new amendment to the Constitution when I wasn't looking? Where does it say "Congress shall make no law abridging the people's right to share copyright infringing duplicates of intellectual property"?

In all fairness, I can't fault too much the young man who gave that comment about his perception of a right to share. Lots of people who ought to know better labor under the same notion that there's absolutely nothing wrong with making a copy to share with a friend. It's the kind of activity that's been going on so long that people often don't even stop to think about whether or not it's legal.

But just for the record...There's no such thing as a right to share that which you don't own. I can't, for example, share my next door neighbor's car with some other person. I don't own my next door neighbor's car and, as such, don't have the right to give someone else permission to borrow it, even if my neighbor sometimes lets me borrow it. The same holds true for music or other forms of intellectual property. Only the copyright holder has the legal authority to say who does and doesn't get a copy.

So, while "share and share alike" is a noble and courteous custom, it's not the law of copyright.

The state of Colorado has snuffed out onstage smoking in its live theaters, even when cigarettes are called for as part of the performance. According to a decision from a state appeals court, Colorado's ban on smoking inside public buildings extends even to the actors in a show. And, apparently, the ban also includes herbal substitutes sometimes utilized as stand-ins for genuine tobacco cigarettes.

As you might imagine, this has riled play houses as well as the Dramatists Guild who see this as an infringement on First Amendment rights. The argument is that smoking "in character" is a form of creative expression. The appeals court's rebuttal is that, in its opinion, smoking by itself isn't sufficiently expressive enough to merit the free speech protections of the First Amendment.

So I guess you can burn a flag on stage in Colorado as a First Amendment right so long a you don't roll it up and put it between your lips.

This being Martin Luther King Day, I'm reminded not only of the famed civil rights leader and the words of his renowned "I Have a Dream" speech but also of the intellectual property issues that speech has raised for the arts and entertainment industry.

You see, Dr. King registered the speech with the U.S. Copyright Office. (This was 1963 when formal copyright registration was necessary to the process of claiming a copyright.) Since then, various people have attempted to republish the speech, either in text or video/sound recording, only to find that the heirs to Dr. King's estate are quick to put the legal kibosh on unauthorized uses.

In King v. Mister Maestro, Inc., a federal court issued an injunction to stop both Mister Maestro and 20th Century Fox from distributing recordings of the speech they were selling to the general public. The King estate also sued USA Today and CBS over their uses of the speech or its text.

Note that there is a fair use exception to copyright when portions of a public speech are republished for the purpose of what's called "bono fide new reporting." However, other purposes -- such as documentary filmmaking, where the line between news and entertainment is blurred to make it more of the latter than of the former -- the fair use exception may not come into play.

It's going to be interesting to watch the threads unravel as the NBC television network tries to extricate itself from the late night mess it has gotten itself into.

As you've undoubtedly heard, NBC is pulling the plug on Jay Leno's prime time show because of poor ratings. (Is there ever any other reason TV willingly cancels a show?) And it proposed to put Leno back at his old 11:35 p.m. EST slot for a half-hour program, which would push the Tonight Show with Conan O'Brien to a slot after midnight. That's an offer O'Brien has publicly declined to accept.

We can probably assume that, at that level, everybody's working under contract. So people in that high-profile arena don't usually just shout "Take this job and shove it!" and storm out the door. It makes for nasty breach-of-contract litigation. But an unhappy comedian isn't the best thing a network could hope for as the host of a long-standing, iconic program. So, if things can't be smoothed over to everyone's satisfaction, look for some type of legal settlement.

There have been reports that Fox might be interested in wooing a disenfranchised O'Brien for its own late night show. The problem there is that Fox affiliates already have contracts for syndicated programming that they've been running at that hour. Stuff like that doesn't just get undone overnight.

Stay tuned...

One blog reader was inspired to ask a follow-up question regarding the recent post on the copyright of Arthur Conan Doyle's iconic character, Sherlock Holmes. She asked...

Would this have to have been done by Doyle himself, or could someone else pick it up later? And that leads to the whole question of who can copyright work? Just the author, her publisher, or ....?

My response is this: Initially, it was probably Doyle who applied for the copyright, or it was Doyle's publisher applying for it in Doyle's name. The laws were different then, and, of course, we're dealing with a different country's copyright laws when we're talking about the United Kingdom. So I can't claim to know exactly what the rules were there and then.

What I can tell you is that, under the current American law, the copyright automatically belongs to the author (unless it's a work made for hire). But the author can also assign the copyright to anyone. So there are lots of situations where the official registry is in the name of someone or something other than the author.

That said, let's also keep in mind that it's not the norm for a character to achieve copyright protection. Ordinarily, a character is excluded from that. Only in very unique cases, where the character possesses such distinctive traits as to separate it from all others is there a reasonable opportunity that it could be copyrighted. Comic book superheroes are one example of such characters.

The day has arrived when the Artful Jurist can celebrate its first birthday. It was January 1, 2009, when the very first entry was posted to this blog. And here it is now the first day of 2010. (Makes it easy to remember the anniversary if you choose New Year's Day to make your entrance into the world.) So happy birthday, AJ, and may there be many happy returns of the day.

To those who have been readers of this blog, thank you very much for sharing your time here. And a very special thanks to those who've taken the time to write questions and comments. They're all much appreciated.

This being a holiday when people tend to reflect back on the year that has just passed, I think it's an appropriate occasion to look back with a certain amount of nostalgia on the legal profession as it has been portrayed on popular television over the years. And, apparently, so does the American Bar Association, which has published a listing of its Top 25 TV Law Shows in its ABA Journal. You can click through the list on its website by clicking here.