Holden Caulfield Grows Up: Salinger v. Colting, the Promotion-of-Progress Requirement, and Market Failure in a Derivative-Works Regime

• Author: John M. Newman
• Position: J.D. Candidate, The University of Iowa College of Law
• Pages: 737-759

737

Holden Caulfield Grows Up: Salinger v.

Colting, the Promotion-of-Progress

Requirement, and Market Failure

in a Derivative-Works Regime

John M. Newman

ABSTRACT: In 2009, the pseudonymous “John David California”

announced plans for U.S. publication of 60 Years Later: Coming

Through the Rye, a “sequel” to J.D. Salinger’s canonical novel The

Catcher in the Rye. Salinger reacted swiftly, bringing a copyright-

infringement suit to enjoin publication of the new work. The district court

granted the injunction, effectively banning U.S. distribution of the sequel

and unintentionally illustrating modern copyright law’s troubling

divergence from the purpose of the constitutional grant of copyright

authority to Congress.

Economic analysis demonstrates the tension caused by the repeated,

incremental expansion of copyright protections—at some point, the

Copyright Act will fail to incentivize the net dissemination of new works. A

check on congressional authority is needed. While a multitude of scholars

have advocated for the First Amendment to serve as such, this Note proposes

that the “promotion-of-progress” requirement of Article I, Section 8 of the

U.S. Constitution provides a superior alternative to direct First Amendment

scrutiny. Thus, where the Copyright Act fails to encourage artistic output—

and, as applied to situations like Salinger v. Colting, it almost certainly

does—the Act is unconstitutional.

I. INTRODUCTION ...................................................................................... 739

II. UTILITARIANISM AND THE MODERN DERIVATIVE-WORKS RIGHT ........... 742

 J.D. Candidate, The University of Iowa College of Law, 2011; B.A., Iowa State

University, 2007. For their excellent suggestions and counterarguments, I would like to thank

Professor Stewart Sterk and Professor Thomas F. Cotter. For sharing her wisdom, guidance, and

considerable expertise, I would like to thank Professor Christina Bohannan, who consistently

manages to make studying law fun. For their diligence in editing this Note, I am grateful to the

editors and student writers of Volumes 95 and 96 of this journal. To my family, fri ends, and

Rachel: thank you.

738 IOWA LAW REVIEW [Vol. 96:737

A. THE UTILITARIAN FOUNDATIONS OF U.S. COPYRIGHT LAW ................ 742

B. THE ECONOMICS OF COPYRIGHT’S DERIVATIVE-WORKS PROTECTION .. 743

III. A TEMPEST IN A TEAPOT: THE UNEASY CASE FOR APPLYING FIRST

AMENDMENT SCRUTINY TO COPYRIGHT LAW ......................................... 747

A. PROBLEMS WITH CONSTRUCTING A FRAMEWORK FOR FIRST

AMENDMENT SCRUTINY OF COPYRIGHT ............................................. 748

B. THE COPYRIGHT ACT’S INTERNAL FREE-SPEECH SAFEGUARDS ............ 749

IV. THE INTELLECTUAL PROPERTY CLAUSE: INTERNAL LIMITS ON THE

CONSTITUTIONALLY PERMISSIBLE SCOPE OF COPYRIGHT LAW .............. 750

A. PROMOTION OF PROGRESS AND THE “ENGINE OF FREE EXPRESSION” ... 751

B. PROMOTION OF PROGRESS AS A LIMITATION ON CONGRESSIONAL

COPYRIGHT AUTHORITY ................................................................... 752

V. PUTTING IT ALL TOGETHER: PRACTICAL APPLICATION OF THE

INTERNAL LIMITS ON CONGRESSIONAL COPYRIGHT AUTHORITY TO

SALINGER V. COLTING .............................................................................. 753

A. DERIVATIVE-WORKS RIGHTS AND J.D. SALINGER’S INCENTIVES TO

AUTHOR THE CATCHER IN THE RYE ................................................ 754

1. Salinger’s Exclusive Right To Prepare Derivative Works .... 755

2. Salinger’s Exclusive Right Not To Prepare Derivative

Works? ..................................................................................... 755

B. THIS APPLICATION OF THE COPYRIGHT ACT WAS LIKELY

UNCONSTITUTIONAL ........................................................................ 757

VI. CONCLUSION ......................................................................................... 758