“The Law is Reason Free from Passion.”

In the fair use case of Salinger v. Random House and Ian Hamilton, Ian Hamilton, a literary writer and biographer proceeded with writing a biography of renowned author J.D Salinger, author of the famous The Catcher in the Rye, after Salinger refused and told Hamilton that he did not want a biography written about him as long as Salinger was alive. This project was to be published by Random House and hoped for Salinger’s partnership and consensus. However, Hamilton continued on with the project and ended up paraphrasing multiple unpublished letters from Salinger. Thus, this case explores the issue of whether Hamilton had “fair use” of Salinger’s unpublished letters.

According to the court case summary, the district court “granted a temporary restraining order in favour of Salinger but subsequently issued an option denying a preliminary injunction” (Stanford University Libraries, 1987). The district court saw the reasoning for Hamilton’s copying of “expressive material” as needing minimal copyright, and acted in accordance to the Copyright Act. The circuit court later reversed this decision from the lower court and ruled the outcome of this case as such: the publishing of Salinger’s unpublished letters was not fair use (Stanford University Libraries, 1987).

I’ve learned in my PUB 802 technology seminar class that the person who ends up deciding if a situation is fair use or not is from the decision of a judge. I think the process is quite subjective, but alas, “the law is free from passion” (Aristotle). There are four main factors when determining the fair use in a case: 1. Purpose of the use, 2. Nature of the Copyrighted Work, 3. Amount of Substantiality of the Portion Used, 4. Effect on the Market. Based on the court summary, only the first factor is in Hamilton’s favour, so I’d like to explore this factor here. Hamilton reveals in his deposition during the court case that he wanted to use Salinger’s letters to “enrich his scholarly biography.” Without a doubt, the letters become the crucial basis to the biography, that the biography would not be completed or successful without them. However, the central focus on the letters demonstrates that there is almost a need for capitalizing on the interest of Salinger’s letters than the actual art of bio-ing him as an author or subject. A purpose that ultimately focuses on capitalizing an idea to which there are profits that go to Hamilton or subsequently Random House does not seem like a true, honest, and worthy project to deem fair use. The nature of the letters is that although they can be found in many public university libraries for people to read, Salinger never authorized the reproduction of them in any way during his livelihood. Hamilton even signed forms which depict his restriction to making use of the letters without the libraries’ or author’s consent (which is Salinger here). Hamilton had no permission to republish or make use of the letters in his own creative endeavours, so how could it be fair use here?

I think that fair use cases will always be subjective, especially in a literary and creative field like publishing. Overall, I think it’s unfair and will never be fair for a person to use someone’s work, against the subject’s freewill and agreement, for his/her own selfish, capitalizing, goal. I understand if a writer wants to include sources to increase the credibility of the work, and it’s often important to include voices and opinions within the community that are knowledgable on the topic. However, with something as personal as letters, who Salinger wrote to his close friends and families, it seems insensitive to exploit such intimate conversations. There were many letters that were not circulating in the university libraries, so if they were published, they would have been paraphrased by a writer who is not involved with these conversations or knows the backstories to them that the public would read about. Who is Hamilton, a guy who isn’t truly related or connected to Salinger to have the power to become Salinger’s voice to tell his life story? Perhaps there can be positive intent to be considered, but I’m glad this case worked in favour of Salinger. Now where can I get a copy of the letters so I can see what I’m missing out here?

Works Cited

Stanford University Libraries. “Salinger v. Random House and Ian Hamilton” Use. https://fairuse.stanford.edu/case/salinger-v-random-house-and-ian-hamilton/. Accessed 3 March 2019.

 

4 Replies to ““The Law is Reason Free from Passion.””

  1. Thank you for the interesting case analysis! I especially enjoyed the Legally Blonde gif. You raise a lot of great points here about copyright, exploitation, and consent. The distinction of letters as sacred and worthy of protecting from capitalistic mass-production, and definitely one worth further exploration. I am curious how far the following statement extends: “I think it’s unfair and will never be fair for a person to use someone’s work, against the subject’s freewill and agreement, for his/her own selfish, capitalizing, goal.” Does the “subject” mean that this applies only to people capitalizing off autobiographical content/photography/diaries, or does this apply to fans capitalizing off content without the creator’s consent?

    1. I think I meant it as the subject of the creative work, the person who created it initially, to all times when a person wants to use work from the subject without appropriate permission and consent. In this instance, it would be Salinger.

  2. Really great response, Charlotte! You give a fantastic summary before getting into the nitty-gritty of the case, and then do quite a thorough job of defending and talking about your own thoughts regarding the the case. I totally agree with you that the author should have not used his letters–I feel like if you’re writing a biography that celebrates a subject, you should probably respect his their wishes! I mean, as long as the letters don’t reveal the subject to have harmed another person (I include homophobia, bigotry and racism here) or committed a crime, if you can justify damaging someone reputation and defying their wishes, then I personally think it’s okay.

    That being said, I’d be really curious to know how much of the letters the author actually used. I feel like there’s a moral issue here, and then there’s the actual case. I think that if the author only cited/paraphrased a small percentage of the text, I’d consider that fair use!

  3. Indeed a good summary and presentation of the facts of the case, but I am left disagreeing with the decision on the basis of the information you presented. Without having gone to read the summary myself, I wonder why he wasn’t allowed to quote the letters, as you are allowed to quote passages of things you are critiquing or analyzing. Perhaps the issue here was with the complete reproduction of the text? In the end of your post you draw your attention to the rights of someone who is the subject of a biography. Fair use and copyright does not really touch on these aspects. Perhaps you think that they should, but then we would need to discuss how that might affect other cases, especially when the subject is someone of public interest. There is a related concept of Moral Rights in intellectual property law, but it refers to something different than what you are discussing here.

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