Did J.D. Salinger Wield Copyright as Self-Protection?

After J.D. Salinger published his story “Hapworth 16, 1924” in The New Yorker in 1965, he decided to stop publishing his works. Although he had resigned from his nearly twenty-year-long stint in the literary spotlight, retreating to a home in Cornish, New Hampshire, and beginning a reclusive lifestyle, he assured The New York Times in a rare interview in 1974, that “publishing is a terrible invasion of my privacy. I like to write. I love to write. But I write just for myself and my own pleasure.”

Salinger’s most famous novel, The Catcher in the Rye, has sold more than 65 million copies. His self-imposed exile was hardly acceptable to many among the throngs of readers longing for his next words, and, eventually, after years devoid of Salinger’s stories, some jilted readers turned Salinger’s inexplicable silence into the contemptible, purposeful isolation of a man who believed himself above the rest, with many attempting to do whatever they could to draw him, and the unpublished works he seemed to be hoarding, back into the public eye.

When these endeavors, some of which resulted in unauthorized adaptations of both his books and his own persona, came to light, occasionally exploding into unprecedented legal battles, the ever-resisting Salinger was regarded sort of as a cantankerous ghost of an author—a once welcome houseguest rattling dusty chains at the unassuming newcomers he thought were messing around with things he left behind. Thus, Salinger’s public legacy, a gnarled mess of copyright enforcement designs, First Amendment controversies, and the persistent desire to be left alone by the press, is one of America’s most unique. Yet his belief that total ownership is not relinquished with public publication, as well as his radical enforcement of copyright law and reliance on the right to privacy, revolutionized the role of the “author” in modern culture, and consequently helped preserve both his identity and his works as masterful and mythic American originals.

Though he led a shrouded life, there are aspects of Salinger’s life that remain indisputable facts, even through the monasticism and mystery, and Kenneth Slawenski, the diligent biographer (and manager of the Salinger fan website deadcaulfields.com for nearly two decades) released his own clear chronology of Salinger’s life shortly after the writer’s death in 2010 at the age of 91. In this biography, J.D. Salinger: A Life Raised High (later renamed J.D. Salinger: A Life), Slawenski details the private life of Salinger as much as he can—usually referring to historical and public documents.

As he details Salinger’s personal life with very public records, Slawenski paints a vivid picture of Salinger without attempting to violate the privacy he desired in his later years, particularly detailing the relationship Salinger had to the character Holden Caulfield, as influenced by his numerous attempts to publish The Catcher in the Rye, as well as the stories about Holden that he had written for himself during the war. Slawenski draws a deep comparison between these two figures (the writer and his creation), perhaps extrapolating better than any other biographer the sensitivity and sincerity of the most famous recluse of the twentieth century.

Salinger was particularly sensitive to appropriation. “Suppose you had a coat you liked,” he told the Times in 1974, “and somebody went into your closet and stole it. That’s how I feel.” Decades before Slawenski, in 1986, Ian Hamilton, a popular British author and a literary critic for The London Sunday Times, had attempted to write his own biography of J.D. Salinger. Salinger refused to grant permission, but Hamilton wrote it anyway, relying on many of Salinger’s letters that belonged to collections in the libraries at Princeton, Harvard, and the University of Texas. Salinger then sued for damages on the grounds of copyright infringement, unfair competition, and breach of contract, and the case went to court in 1987.

Hamilton argued that his use of Salinger’s personal letters was legitimate under the copyright policy of Fair Use, which legally allows the incorporation of works within others under certain circumstances. Hamilton believed that the use of the letters fell under the “criticism, scholarship, and research” category permitted under Fair Use, and therefore that his utilization was permissible, while Salinger argued that, as the letters were unpublished when Hamilton used them (although Salinger registered them for copyright protection during the beginning of the case), a defense under Fair Use would be invalid, since the policy really referred to published works.

The case was settled using the four principles of Fair Use. Factoring in Hamilton’s transformative utilization of the letters, the fact that letters were unpublished, the large amount of text taken, and the fact that any reproductions and interpretations of Salinger’s letters might interfere with the library traffic aimed at viewing the originals (Hamilton reproduced the “most interesting” parts of their contents) it was decided that Hamilton’s actions were not protected under Fair Use. Salinger’s copyright suit extended beyond this, though—at various points in the text, it is clear that Hamilton blurred paraphrases and quotes from these letters, mimicking Salinger’s style when recounting. According to the case brief, upon cross-examination, Hamilton explained that he used Salinger’s style to prevent using “a pedestrian sentence I didn’t want to put my name to.” The court declared that,

When dealing with copyrighted expression, a biographer (or any other copier) may frequently have to content himself with reporting only the fact of what his subject did, even if he thereby pens a “pedestrian,” sentence. The copier is not at liberty to avoid “pedestrian” reportage by appropriating his subject’s literary devices (Salinger v. Random House, [24]).

Salinger was declared the winner, and Hamilton’s mimicking biography was invalidated. In this moment, both Salinger’s rights and his individual voice were vindicated. However, several years later, Hamilton came out with another book, In Search of J.D. Salinger.

In this self-justificatory, first-person biographical narrative, Hamilton analyzes the Salinger he had just encountered at court, and does not responsibly detail Salinger for biographical purposes, preferring to drag down to human level the aloof literary deity who had fought desperately to keep his elevated, and inaccessible status. And he succeeds—Hamilton’s memoir is exceedingly subjective, influenced by his own legal frustrations and the rather cartoonishly Caulfield-esque desire to tell his audience a sort of truth. “Obviously Seymour Glass is Salinger in disguise,” Hamilton writes, comparing Salinger to another lovable, suicidal teenager, this time from Seymour. “It’s evident Salinger has a saint complex. He wants to be a saint. The trouble is, he doesn’t have a saintly personality—quite the opposite—he is egotistical, ill tempered, unforgiving. But he wants to be a saint because saints are above the humans, they are unstoppably superior.” Hamilton is the proponent of this view of Salinger—a haughty relic frozen in time.

Despite his hammy, albeit sleazy, approach, Ian Hamilton helped build Salinger’s famous persona. He turned an introvert into an outsider, a writer into a caricature. The case gave Salinger a threateningly nitpicky reputation he would wear for the rest of his life—the verdict raised opposition because it seemed to infringe upon the First Amendment right to free speech, by censoring what people could reproduce in their own writing. However, Salinger’s lawyers argued, Salinger’s First Amendment rights had actually been trod upon, as, by publishing Salinger’s words without permission, Hamilton had infringed upon Salinger’s right not to speak.

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In 1982, the writer W.P. Kinsella included a characterized version of Salinger in his novel Shoeless Joe, a story about an Iowa farmer who is encouraged by mystical voices to build a baseball diamond in his cornfield so the spirits of the eight scandalized baseball players of the Chicago White Sox could play ball again. When this literary Salinger learns about the baseball ghosts, he is delighted, and agrees to help the protagonist. Salinger the writer, however, was not amused with this harmless addition to Shoeless Joe. In a 2010 interview with McLean’s John Geddes, Kinsella mentioned, “his lawyers wrote my publisher’s lawyers saying he was outraged and offended to be portrayed in the novel and they would be very unhappy if it were transferred to other media.” Kinsella was careful in his construction of the character: “He was pretty much an imagined Salinger,” he said later “apart from being a recluse. I made sure to make him a nice character so that he couldn’t sue me.” Although Shoeless Joe is more of a commentary on the magic of American pop culture (baseball meets its match in the grown-up Catcher in the Rye), it does express Salinger as a character, instead of a person with a right to privacy.

Shoeless Joe was adapted into the film Field of Dreams in 1988. It starred Kevin Costner, James Earl Jones, Amy Madigan, Ray Liotta, a young Gaby Hoffman, and the legendary Burt Lancaster (in his last feature film performance). The film was nominated for three Academy Awards, including Best Picture and Best Adapted Screenplay. Writer/director Phil Alden Robinson removed Jerry from the story, replacing him with a similar but distinct enough character named Terry: Terence Mann (James Earl Jones), a major force in the 60s literary scene, author of the perennial classic The Boat Rocker, now a recluse. Ray is instructed, by the voice he hears in his cornfield, to find the writer Terrence Mann and take him to a baseball game.

In 1988, a headline reading “GOTCHA CATHER,” along with a black-and-white photo of a shocked, silver-haired, sixty-nine-year-old Salinger, appeared on the cover of the New York Post. Paparazzi photographer Paul Adao had jumped out at Salinger and taken the candid in Salinger’s town of Cornish, and the canted photo shows the elderly man attempting to punch the camera out of the photographer’s hands. Myles Weber suggests that it inspired Don DeLillo’s Pen/Faulkner Award-winning 1991 novel Mao ii, which is about an reclusive writer’s inability to shake his fame. However, not everyone received the photo with this same sympathy; the photo is the worst violation of privacy the author could have experienced—goofy, and disrespectful in its physical transformation of a rarely-seen, celebrated author into a kooky old hermit, or, given the title, an old Holden Caulfield.

In the late 1990’s, however, two works were released which also challenged Salinger’s privatization of his life. The writer Joyce Maynard, who, at age nineteen, dropped out of Yale to live with the twice-divorced Salinger in 1972. In 1998, she published a memoir about her time with him called If You Really Want to Hear About It. In 2000, the long-suffering daughter of J.D. Salinger and his second wife (Claire Douglas, who also dropped out of college at age nineteen, in 1954, to live with him) published her own memoir, Dream Catcher, about her relationship with her father. Both books, with titles punning on The Catcher in the Rye (in a similar tradition to Hamilton’s Holden-heavy biography), reveal intimate details of Salinger life. Critics of Maynard’s book called hers opportunistic, especially considering she auctioned off her personal letters from Salinger shortly after the publication of her book. (They were bought by Peter Norton, who immediately returned them to Salinger.) But Maynard’s story revealed another important facet of Salinger, a creepy side—that he was an older man obsessed with young girls.

Margaret’s book, published while her father was still alive, should be the most accurate representation of her father thus far. However, her tale conjures up a lost soul, an ex-soldier, and an antisocial wanderer, and seems to be, at least in the tradition of her father’s prose, a kind of epic catharsis. Margaret justifies the publication of her book on the grounds that she has the First Amendment right to share her own story—which just happens to be influenced by her father.

However, shortly after it’s publication, Salinger’s son Matt (the caretaker of his estate), published an open letter in The New York Observer, discrediting his sister’s account on the basis that she was unwell:

Of course, I can’t say with any authority that she is consciously making anything up. I just know that I grew up in a very different house, with two very different parents from those my sister describes,” Salinger explained, going on to claim, “she remembers a father who couldn’t ‘tie his own shoe-laces’ and I remember a man who helped me learn how to tie mine, and even-specifically-how to close off the end of a lace again once the plastic had worn away.

Words like Matt Salinger’s are rare, in that they respectfully acknowledge Salinger’s personal desire for solitude. More importantly, they, in a rich, J.D.-esque tone, serve to remind audiences of a deeper Salinger, one who, as noted by Dennis L. O’Connor, wrote about the sadness of anti-Semitism, the horror of war, and the crime of sexual exploitation, the importance of spirituality, the wonderfulness of children, and “the importance of human dignity.”

Though Salinger, himself, was adapted often, his works faced this fate even more. According to Myles Weber’s “Reading Salinger’s Silence,” it is not uncommon for writers to long for solitude—Katherine Anne Porter, Thomas Pynchon, and Don DeLillo all chose lives outside the spotlight but, unlike Salinger, they also chose to keep publishing. In addition, Salinger’s The Catcher in the Rye uniquely defined a generation, so his case is closer to that of the equally dormant Harper Lee, author of the 1960 Pulitzer-Prize-winning To Kill a Mockingbird. In the 1993 edition of the novel, Harper Lee explained her unique silence in its short introduction: “Mockingbird still says what it has to say.” Lee’s refusal to publish is still distinct from Salinger’s, largely because she handed over the film rights to her masterpiece within two years of publication. Until the Times interview in 1974, Salinger’s perspective on his rights to his works were, according to Weber, “I have my reasons.”

He also adamantly refused to sell film rights. “The Catcher in the Rye” he explains in a letter, “Is a very novelistic novel. There are readymade ‘scenes’—only a fool would deny that—but, for me, the weight of the book is in the narrator’s voice, the non-stop peculiarities of it.” According to Weber, the main reason for Salinger’s onslaught of fan-driven literary boosterism is that only Salinger understood why he stopped publishing—and it’s because people don’t understand that he stopped.

However, the more Salinger’s fans tried to bring him back, the more he grew frustrated, and grew more antisocial. In 1977, Esquire magazine published an anonymous short story called “For Rupert—With No Promises” written with the intent of making it seem as if he had begun to publish again. As it turned out, Esquire’s fiction editor, Gordon Lish, wrote the story. He claimed, “If Salinger was not going to write stories, someone had to write them for him.” Ironically, Gordon Lish was the recipient of Don DeLillo’s dedication in Mao ii, the story allegedly inspired by Salinger’s desire for solitude.

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On December 8, 1980, an ex-mental patient named Mark David Chapman shot world famous musician John Lennon to “stimulate the reading of J.D. Salinger’s The Catcher in the Rye.” A few weeks after his arrest, he sent a note to the New York Times, explaining his motives.

He says that he desired to “’stimulate the reading of J.D. Salinger’s The Catcher in the Rye,’” and “’if you were able to view the actual copy of ‘The Catcher in the Rye’ that was taken from me on the night of Dec. 8, you would find in it the handwritten words ‘This is my statement.’’”

According to his note, Chapman identified with the novel’s protagonist, Holden, who, in the book’s conclusion, is institutionalized and brokenhearted. Chapman said, ”My wish is for all of you to someday read ‘The Catcher in the Rye.’ All of my efforts will now be devoted toward this goal, for this extraordinary book holds many answers. My true hope is that in wanting to find these answers you will read ‘The Catcher in the Rye.'” At his trial, he read out loud the novel’s titular passage, about Holden’s wanting to catch children from falling off a cliff as they played.

In Daniel Stashower’s remarkable study, “On First Looking into Chapman’s Holden: Speculations on a Murder,” he suggests that

Holden Caulfield and Mark Chapman were faced with the same crisis: an assault on innocence. Holden Caulfield could not find a way to preserve innocence forever and was forced to entertain the notion of growing up. If I am correct in my speculation, Chapman found a way. Taking as a model the only character in The Catcher in the Rye who achieved perpetual innocence, Chapman found his course clear. For John Lennon’s innocence – which was essential to Chapman’s man’s own spiritual well-being—to remain intact, Lennon himself would have to die. Only then could his innocence, like [Holden’s deceased brother] Allie’s, be preserved forever.

Salinger’s themes, through the plight of Holden, are angsty, endearing, and easily relatable; the book, which finds new (mostly teenage) fans each year would not have needed Chapman’s help garnering publicity, but, this unfortunate linkage of the text to his action, presented a real-life association Salinger neither intended nor wanted: Holden’s appeal to frustrated, unwell, incel-trending young men. In 1981, following the attempted assassination of then-president Ronald Regan by John Hinckley Jr., police found a copy of The Catcher in the Rye in his hotel room. In 1989, the actress Rebecca Schaeffer was murdered in her apartment by her stalker, Robert John Bardo, who was reported as carrying a copy of the novel when he broke into her home.

Stephen Whitfield notes that a commentary on the appropriation of Catcher by mentally ill young men can be found in John Guare’s play Six Degrees of Separation from 1990. The troubled young protagonist, Paul, who lies to a wealthy New York Family to ingratiate himself into their home, discusses Catcher with his new family, reading the play as

…a touching story, comic because the boy wants to do so much and can’t do anything. Hates all phoniness and only lies to others. Wants everyone to like him, is only hateful, and is completely self-involved. In other words, a pretty accurate picture of a male adolescent. And what alarms me about the book-not the book so much as the aura about it-is this: The book is primarily about paralysis.The boy can’t function. And at the end, before he can run away and start a new life, it starts to rain and he folds….

Stashower notes, of the popular misreadings of Catcher,

Simply put, it appears Chapman misread The Catcher in the Rye. He took the ‘catcher’ passage to be the novel’s solution, when in fact it is the crisis. No one who has read The Catcher in the Rye will argue that Holden Caulfield was a seriously disturbed sixteen-year-old. He wanders through New York with a genuine desire, to quote an old Beatles tune, to “take a sad song and make it better,” but he doesn’t know how to begin. As a result he develops an all-purpose, self-protective cynicism… Holden Caulfield wants to stop reality. He wants to keep the children in the rye field from growing up. But growing up is the natural order of things. It cannot be stopped.

Meaningful critical interventions, aside, The Catcher in the Rye became cursed by such misreadings, such real-life appropriations. Copyright protections can stop a work from being copied, pirated, poached. They can’t stop it from being misunderstood.

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Perhaps after this flurry of horrific, real-life infringements, the legacy of Catcher began to wear on its creator. In 2009, Salinger encountered a different kind of brazen opportunism in the Swedish writer Fredrik Colting, who published an unauthorized sequel to Salinger’s 1951 novel The Catcher in the Rye in 2009, under the pseudonym J.D. California.

As Salinger had consistently renewed the copyright on The Catcher in the Rye, his estate sued Colting for copyright infringement. The unauthorized sequel, Coming Through the Rye: 60 Years Later, tells the story of “Mr. C,” a 76-year-old Holden Caulfield, who escapes from his nursing home and travels back to New York City to recapture his forgotten youth, before he meets none other than J.D. Salinger, his creator, who has magically brought Holden to life, so he can kill him and finally be rid of his annoying legacy.

By 2009, Salinger was ninety years old and completely deaf. The court evaluated 60 Years Later as a Fair Use case. While the book transformed the original, the new work took far too much (including the “heart”) from the original, and it might destroy the market for authorized sequels. (For those interested, pages 6-7 of the affidavit signed during the case by literary agent Phyllis Westburg detail Salinger’s specific contractual appropriation/adaptation rights).

The court declared Salinger the winner of the dispute. Although this second decision was extremely reminiscent of the 1986 decision, which many feared rattled too close to the First Amendment, Salinger was within the right. According to “Copyright for Functional Expression,” by Lloyd L. Weinreb and published in the Harvard Law Review, an author of a work automatically has copyright over their works, even if it is has not been formally approved, and regardless of the personality of the author. Coulting, and many others, violated that basic principle. Although it does increase his miserly image, Salinger’s reinforcement of this right is justified.

However, Salinger’s militant enforcement of law to protect his own personal interests also set negative precedents. For example, the verdict in Salinger v. Random House, which had prevented the copying of unpublished materials, made it impossible for the University of Maryland to legally microfilm their deteriorating collection of personal papers bequeathed to the library by Katherine Anne Porter. Therefore, at the time, it was both impossible and illegal for the University of Maryland to perform a necessary procedure to save some of their highly valuable documents. The laws towards unpublished works have since changed, but this instance indicates absurd and unexpected social ramifications of national verdict that Salinger had only sought for his personal vindication.

Although the circumstance involving the University of Maryland is tied to a copyright decision that Salinger unluckily and coincidentally spurred, Salinger has reacted with surprising zeal against innocent adaptations, as well.

In 1998, for example, Salinger threatened to sue the Lincoln Center Film Society if they screened an Iranian film called “Pari,” based loosely on Franny and Zooey, and directed by Dariush Mehrjui, who did not want any compensation for showing the film in America, preferring to give the film to the United States as a peaceful “cultural exchange” (McKinley, The New York Times). In this case, Salinger’s desire for privacy borders on inappropriate and obsessive—refusing to overlook a slight infringement in the name of the global peace he, a World War II veteran, allegedly desired badly.

Salinger’s ultimate legacy will be preserved by his estate—which is currently run by his widow, Colleen Salinger, and his son, Matt. Matt Salinger has already sent a bill through the New Hampshire legislature that would allow commercial use of one’s identity to be inheritable after death. The bill, which Salinger had hoped would prevent the sale of popular merchandise (t-shirts, hats, mugs, etc) with the Paul Adao photo (as well as the ubiquitous 1950 black-and-white photograph by Lotte Jacobi) on them, was vetoed on the grounds that, it would “inhibit constitutionally protected speech and result in needless litigation to judicially establish what should have been made explicit in this bill,” according to New Hampshire Governor Lynch (Ramer, The Huffington Post). History has come full circle—Salinger’s legacy has once again been tied to restrictions of the First Amendment.

The estate has not resisted the publication of Slewenski’s biography, perhaps because Slewinski clearly wants little from Salinger or his estate, and prefers to present the facts, allowing them, and not yet another interpretation of the man, to speak for themselves.

Salinger’s tradition has already begun to change, simply because his static identity had changed—he died. Both Myles Weber and Ian Hamilton suggest that Salinger had already created his own posthumous identity by retreating into solitude so early into his career. Therefore, Salinger’s real death brought about his public rebirth. For example, fifty letters that Salinger had exchanged with his English friend Donald Hartog from their meeting in 1938 through the 1980’s, which had clandestinely been possessed by University of East Anglia since Hartog’s death in 2007, were being made available to the public to commemorate the one-year anniversary of Salinger’s death. In these letters, Salinger discusses average things with his friend (such as his love for Burger King Whoppers and his favorite tennis player Tim Henman). Salinger’s death is slowly unfurling his humanity (Gabbatt, The Guardian).

The last book published by J.D. Salinger, a 1963 collection of stories called Raise High the Roof Beam, Carpenters, and Seymour—an Introduction, has a curious, and similarly human, dedication. “If,” Salinger briefly states, “there is an amateur reader still left in the world—or anybody who just reads and runs—I ask him or her, with untellable affection and gratitude, to split the dedication of this book four ways with my wife and children.” It is hard to imagine, however, that this anxious and extant idealist who, with the dedication in Seymour, entrusted his most autobiographical work simply to anyone who cared enough to read it, is the same man accused of being a strange, old version of his own characters, in the words of Weber, “a fledgling actor in his adolescence… now sinking his teeth into the role of a lifetime, that of a reclusive artist,” and, in the words of Hamilton, “an egotistical, ill-tempered, unforgiving man… who wants so badly to be canonized.” Salinger was well aware of his inadvertent public persona; in the 1974 Times interview, he stated, “I pay for this kind of attitude. I’m known as a strange, aloof kind of man. But all I’m doing is trying to protect myself and my work.”

In other words, before his death in 2010, Salinger became the ghost in the machine of American literature, embodying the battle between preservation attempts of his exterior works, and therefore the maintenance of their immortality, and the need for self-preservation and an undisturbed, peaceful human existence. And a battle it was, indeed.