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J.D. Salinger and Copyright's Rule of the Shorter Term Vanderbilt Journal of Entertainment & Technology Law Volume 19 Issue 4 Issue 4 - Summer 2017 Article 1 2017 J.D. Salinger and Copyright's Rule of the Shorter Term E. Townsend Gard Follow this and additional works at: https://scholarship.law.vanderbilt.edu/jetlaw Part of the Intellectual Property Law Commons Recommended Citation E. Townsend Gard, J.D. Salinger and Copyright's Rule of the Shorter Term, 19 Vanderbilt Journal of Entertainment and Technology Law 777 (2020) Available at: https://scholarship.law.vanderbilt.edu/jetlaw/vol19/iss4/1 This Article is brought to you for free and open access by Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Journal of Entertainment & Technology Law by an authorized editor of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. J.D. Salinger and Copyright's Rule of the Shorter Term E. Townsend Gard* ABSTRACT Recently, the small publishing house Devault-Graves took on the Salinger Estate in an, almost, epic battle to determine whether the copyright term had ended on three of Salinger's early short stories in each country around the world. Devault-Graves wanted a declaratory judgment stating that if the copyright term had expired in the United States, it would have expired in all other countries with a "rule of the shorter term" (RST). But copyright is never that simple, as Devault- Graves soon found out. This short-lived case provides a useful lens through which to view the property rights as defined by the "limited" term in copyright and the pesky concept of RST embodied in the Berne Convention. RST posits that the copyright term for a work in a given country is limited to the amount of protection that its home country gives that same work; if a work is first published in Country A, and Country A provides ten years of protection, while Country B provides one hundred years, Country B need only provide ten years of protection to that work from Country A. RST becomes a key property boundary for foreign works, marking the moment between copyright and the public domain. And yet, whether RST is applied to foreign works in a given country is often unclear, or defining RST itself becomes very complicated. In the end, RST was not a friend to Devault-Graves. The Salinger short stories (in the US public domain) turned out to have copyright terms that were much more difficult to assess worldwide and, in many cases, were still protected by copyright in many countries around the world. This Article provides an in-depth discussion of RST and how it plays out on an historical as well as a practical level. This * Associate Professor of Law and Jill H. and Avram A. Glazer Professor of Social Entrepreneurship, Tulane University. Thanks to Robert Spoo, for encouraging the topic for his "How Long?" conference at the University of Tulsa (2016), and to Peter Jaszi, Dale Nelson, David Olson, Dan Collier, Betsy Rosenblatt, Helen Buckley, and everyone who participated and helped to make the discussion of RST that much deeper. Thanks especially to Helen Buckley at TLS, and the members of the VANDERBILT JOURNAL OF ENTERTAINMENT & TECHNOLOGY LAW for all of their hard work in making this article beautiful, and to SKG and WRG, as always. 777 778 VAND. J. ENT. & TECH. L. [Vol. XF-K:4:777 Article ends by suggesting a three-part test to determine whether RST applies in a particularcountry for a particularforeign work. TABLE OF CONTENTS I. SALINGER IN THE COURTS .......................... 778 II. SALINGER AND RST ........................... ....... 782 III. DOMESTIC VERSUS INTERNATIONAL COPYRIGHT........ ...... 784 IV. RST EXPLAINED: HISTORY, PURPOSE, AND APPLICATION ......... 786 A. History of RST: The Berne Convention ................. 786 1. RST and Treaties .............................. 786 2. RST Today.................................... 789 V. DETERMINING TERM IN THE COUNTRY OF ORIGIN FOR RST PURPOSES ................................ .............. 790 A. The Term When the United States Is the Country of Origin 790 B. Potential Versus Actual Term .......................... 791 V I. R ST IN A CTION ............................................................................ 795 A . R S T App lied ........................................................................... 795 B. Potential Term in Action: The Cases of Germany ................ 798 VII. EXEMPTIONS FROM RST?............................................................ 804 A. Bilateral Treaties, Free Trade Agreements, and the TPP.... 804 1. B ilateral Treaties............................................................. 804 2. Free Trade Agreem ents................................................... 805 a . Ca nada........................................................................ 805 b. US-Singapore Free Trade Agreement........................ 806 c. O ther FTA s.................................................................. 807 3. The Trans Pacific Partnership........................................ 807 VIII. RST RULE OF THUMB FOR US WORKS ....................................... 809 IX. RST ANALYSIS: THREE PART TEST PROPOSAL........................... 813 X . C ON CLU SIO N ............................................................................... 814 I. SALINGER IN THE COURTS J.D. Salinger and his estate are no strangers to copyright litigation. In the mid-1980s, a biographer's failed attempt to publish Salinger's letters added to the debate over the applicability and extent of fair use.' Two decades later, the Second Circuit ruled again in favor 1. Salinger v. Random House, Inc., 811 F.2d 90 (2d Cir. 1987). The accused biographer wrote a book about his experience. The Second Circuit found that Salinger had the right to control how even excerpts were used and therefore found no fair use. Id. In response, Congress 2017] J.D. SALINGER & COPYRIGHT'S RULE 779 of Salinger in a case about an unauthorized derivative work-a sequel to Catcher in the Rye called 60 Years Later: Coming Through the Rye by John David California. 2 Both court rulings had a long-term impact on copyright law. In the first case, after the court found that unpublished works were not covered by fair use, Congress amended the Copyright Act to include published and unpublished works under Section 107.3 The second case confirmed standards of injunctions to copyright that had been developed in the patent arena. 4 In 2015, the Salinger Estate again found itself in court, this time with a small publisher, Devault-Graves, who wanted the court to declare that three short stories in the public domain in the United States, were also in the public domain around the world, if a particular country applied "Rule of the Shorter Term" (RST).5 If this case followed suit, this new litigation would have done for RST what the previous cases did for injunctions, fair use, and unpublished amended the 1976 Copyright Act in 1992 so that Section 107 included the following phrase: "The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors." 17 U.S.C. § 107 (2012). The biographer in the case, lan Hamilton, wrote a book about the experience of using Salinger's letters and getting sued. IAN HAMILTON, IN SEARCH OF J.D. SALINGER (Random House 1988). Amazon describes it by stating: "This text is the story of that quest, a literary detective story which ends in court, with a bitter and protracted lawsuit in which Salinger sought to restrict the use Hamilton could make of his letters." In Search of J.D. Salinger, A Biography, AMAZON, https://www.amazon.com/Search-J-D- Salinger:Biography/dp/0394534689/ref=1aBOOOAPLMJS 1_14?s=books&ie=UTF8&qid=1474044 716&sr=1-14&refinements=p_82%3ABOO0APLMJS [https://perma.cc[NRJ5-PSY4] (last visited Apr. 4, 2017). Ian Hamilton was so affected by the suit, he went on to write Keepers of the Flame: Literary Estates and the Rise of Biography. When Ian Hamilton, poet and renowned biographer of several subjects, passed away, the headline was "Ian Hamilton, 63, Whose Salinger Book Caused a Stir, Dies." Douglas Martin, Ian Hamilton, 63, Whose Salinger Book Caused a Stir, Dies, N.Y. TIMES (Jan. 7, 2002), http://www.nytimes.com/2002/01/07/arts/ian-hamilton-63-whose -salinger-book-caused-a-stir-dies.html?-r=0 [perma.cc/6DME-Y6WH] (last visited Sept. 9, 2016). 2. Salinger v. Colting, 607 F.3d 68 (2d Cir. 2010). The Second Circuit held that eBay's ruling applied not only to patents but to copyright as well, requiring a four-part analysis to obtain a preliminary injunction. Id. (referencing eBay, Inc. v. MereExchange, L.L.C., 547 U.S. 388 (2006)). The sequel was first published in the United Kingdom. It was later revealed that the publisher, Colting, was also the author. Dennis Johnson, Fraud Behind Salinger Fraud Admits He's a Fraud, MELVILLE HOUSE (June 12, 2009), http://www.mhpbooks.com/fraud-behind- salinger-fraud-admits-hes-a-fraud/ [https://perma.cc/FY69-T6GT]. 3. "The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors." 17 U.S.C. § 107 (2012). This last sentence in Section 107 was added after Salinger v. Random House. See supra note 1 and accompanying text. It is important because it signals that fair use also applies to unpublished works, which is key for many scholars and individuals working with archival materials. See § 107. 4. Colting, 607 F.3d 68. 5. Amended Declaratory Action and Complaint for Damages 1 3, Devault-Graves Agency, LLC v. Colleen M. Salinger and Matthew R. Salinger as Trustees of J.D. Salinger Literary Trust, No. 2:15-cv-02178-STA-tmp, 2015 WL 6143513 (W.D. Tenn. Oct. 19, 2015) [hereinafter Devault-Graves Amended Complaint]. 780 VAND. J. ENT. & TECH. L. [Vol. Xl--K:4:777 works: provided a concrete standard by which to measure, in this case, the duration of a work's copyright term around the world. This case, however, would be dropped before that could occur. This Article takes up the topic: the relationship between the status of a public domain work in the United States and its status around the world in countries that apply RST.
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