Holden Caulfield, Gay Superheroes, and the Death of The Author

by Sean McGilvray on July 13, 2009

Two recent developments have raised questions about the amount of control an author has over his characters once they leave the womb of his or her creative imagination and enter the collective consciousness. There’s a fine line between the public awareness and the public domain, and just because a character has embedded itself in the public imagination doesn’t mean that it is up for grabs. Our entire system of intellectual property protection is designed to give the author control of their creations, but what happens when the character gets bigger than its creator?

X-Factor Comic Book Gay Kiss Rictor and ShatterstarThere has been enthusiastic coverage of a recent issue of X-Factor from Marvel comics in which writer Peter David depicts a gay kiss between mutant superheroes Rictor and Shatterstar. Some of the more hyperbolic stories about this development have called it the first homosexual kiss between two super-heroes in mainstream comics. Actually, there have been several man-on-man kisses in the four-colored world but I’m just happy when I see news stories about comics that don’t feature “Bam! Pow! There not just for kids anymore!” in the headlines. Over the years, there have been hints and intimations of a deeper relationship between the two characters, but this is the first fully realized confirmation of their sexuality. What makes this news interesting is the reaction of Rob Liefeld, the artist who created the character of Shatterstar.

“Want to add, that I have nothing against gays, I have gay family, nuthin’ but love here.
Ditto gay characters if thats’ what their true origins are.
As the guy that Created, designed and wrote his first dozen appearances, Shatterstar is not gay. Sorry.
Can’t wait to someday undo this.
Seems totally contrived.
Shatterstar is akin to Maximus in Gladiator. He’s a warrior, a Spartan, and not a gay one.”

Looking past the selective reading of Greek history, we see an author worried about the later treatment of a character he created. Comic books are unique among other forms of media in that they are perpetually serialized. When a writer or an artist or a collaboration between the two create a character like Shatterstar they do so as a work-for-hire and the character becomes the property of the publisher, Marvel comics in this case. With any luck, they will continue to publish issues featuring those characters for years or decades after the original creators have left the project behind. Rob Liefeld does not own Shatterstar; he possesses no droit d’auteur, or natural right in the integrity of his creation. At least none that U.S. copyright law recognizes. But he still feels a sense of propriety over the character. He seems to be saying that since he conceived the character, he has a better knowledge of the truth behind him and how he should be portrayed, despite the fact that Shatterstar is a parcel of intellectual property wholly owned by Marvel Comics and they are paying Peter David to portray him however he wants. Liefeld’s comment that he “can’t wait to undo this” is a telling reminder of the curious nature of comic book characters. Because their stories are ongoing, the characters develop, devolve, and start again through numerous iterations as new creative teams make their mark on a book. Status quos are constantly in flux, and Rob Liefeld might even get the chance to undo these changes someday.

Contrast that with the recent decision in the New York District Court permanently banning the U.S. publication of a novel featuring an elderly Holden Caulfield called 60 Years Later: Coming Through the Rye .

Catcher in the RyeCaulfield is the protagonist of reclusive author J.D. Salinger’s The Catcher in the Rye, a seminal coming of age book in which a self-absorbed teen wanders around New York City observing the phoniness of modern society. “J.D. California” wrote an unofficial sequel of sorts featuring a grown-up version of the character, referred to in the text as “Mr. C”, who revisits several locations and characters from the original novel and reconsiders the story from an older, wiser perspective. Salinger did not approve and took legal action against what he argued was a pure and simple case of copyright infringement.

California, whose real name is Fredrik Colting, argued that his novel constituted a fair use of the protected work under 17 U.S.C. 107. Judge Deborah Batts didn’t buy this contention, holding that Colting’s work wasn’t transformative enough to qualify as parody or critical statement on Salinger’s perennial novel of teenage rebellion. I haven’t read the novel in question, and this recent decision ensures that I may never have the opportunity to do so without travelling to places where American copyright law does not reach (like Great Britain, where the book already sits on bookshelves across the land) since the injunction will stop publication of the book until the case goes to trial and the litigation is settled. But the subtitle alone suggests to me that Colting’s novel was intended as commentary upon the original work and Salinger’s depiction of Caulfield: “An Unauthorized Fictional Examination of the Relationship Between J. D. Salinger and His Most Famous Character” suggests some degree of critical intent, and therefore should fall under the fair use exception to copyright infringement. But Judge Batts ruled that the story of an older version of Caulfield contained no “reasonably discernible rejoinder or specific criticism of any character or theme” of The Catcher in the Rye. Therefore it can’t be a fair use, since it is too general to be a focused parody and can’t satirize the original.

It is beyond question that Salinger owns the copyright to his novel. The story of Caulfield’s angsty odyssey belongs to Salinger, but the idea that he owns the character himself seems at odds with the typical role of popular culture. Holden Caulfield has become something of a stock character who stands as a sort of shorthand for adolescent alienation. He may be bigger than Salinger in the same way that Ishmael is bigger than Melville or Romeo is bigger than Shakespeare. But part of the reason that Salinger exerts such control over his creation is because of the finite nature of his novel. Salinger has no intention to write a sequel to the novel and he goes out of his way to oppose new adaptations of the work, preferring to let the original stand alone as the final word on the story.

J.D. Salinger and Rob Liefeld are both creators who want keep a stranglehold on their creations, one through influence and one through copyright infringement suits. Their circumstances are wildly different; one is a reclusive novelist seeking to nix new uses of his character and the other is an artist who designed a comic book character as a work for hire and objects to later homoerotic depictions. Both stances make a certain amount of intuitive sense, but don’t really jive with the way culture works. Creations tend to take on a life of their own once they become part of the public discourse. Minor characters from older works become central characters of new ones all the time. Wicked, Rosenkrantz and Guildenstern are Dead, and The Wind Done Gone are all examples of stories that feature characters from previous books. Only the last was subject to a copyright dispute, and the novel retelling the events Gone with the Wind from the perspective of Scarlett O’hara’s half-sister met the fair use standard that Colting’s novel missed.

So how much control should an author have?

{ 8 comments }

jon August 29, 2009 at 9:33 am

awesome books there very interesting themes of teenage rebellion. this article is quite relevant : http://sahmanswers.com/news.php?readmore=1290

willie jimenez September 27, 2009 at 9:28 am

thats my pic on this actical!!! i wouldn’t mind letting use the image. if you asked. the fact you took it without asking is considered steeling. you can argue the fact that i don’t own the character. but i do own that peace illustration!

you don’t need to take it down. but i ask that you at least post my name or where you got it.

i don’t mean to be mean but i’ve found this pic used in a number of places with out my asking. i’ve had to couple of places ask for the use of it, one guy even offered money. and i let them all have it. i don’t mind sharing.

later…

Sean McGilvray September 27, 2009 at 9:57 am

That sounds like a perfectly reasonable request. I have edited the image to add your name, as attribution is the primary right an author should be able to maintain in its work. I am sorry you are having trouble keeping this image under control, but such is the nature of the digital sphere.

That being said, I would argue that using the image in our article falls under the fair use provision, as mentioned in the text. The legal geek in me would argue that including the image is not “considered stealing.”

I applaud your willingness to share use of your work. As an artist, have you ever checked out the Creative Commons? It is a nonprofit that helps artists like yourselves provide licenses and navigate the choppy waters of copyright law.

Thanks for posting.

willie jimenez October 1, 2009 at 9:19 am

stating that this is the nature of the digital sphere, or insinuating its ok because other do it. doesn’t excuse you. that kind of attitude only adds to the problem.

put yourself in my shoes… how would you feel if someone used or took and excerpt from one of your articles or something you written. quoted you without mentioning your name or hell took an entire peace and published it online somewhere. would you argue it’s ok since it another non profit site and they aren’t making any money off you. how would you feel if someone read any of the above examples and said to themselves man this guy sounds like the perfect guy to this job i need done. but they wouldn’t know how to contact you or worse they hire the guy running the other site.

yes its the nature of the digital sphere as you put it. if i have a site i get people to come to it by having links on as many other pages as possible. and i give back by linking back and link to other sites to be it going. having a pic on your site and not linking or adding even a name is selfish!

i might understand fan sites or blogs. but if this is a news article or whatever… you need to name sources. if this get picked by a mag or something they gonna wanna know this type of info. and guess what, if your gonna get something out of it then so do i. taking my pic and adding it to your article is like taking a peace out someone else’s and plagiarizing.

taking a pic to post on your page to make it look nice! is called web design. and people get paid for that. when mags want a illustration they pay for that. when people want to use anything that doesn’t belong to them… they pay for that. i know i freelance. i been paid for all these things and more. one guy offered 200 bucks for the use of this here pic. and you think you can just take it! and theres nothing wrong with that?

westwolf270@yahoo.com

later…

Sean McGilvray October 1, 2009 at 10:08 am

@willie jimenez,

As a creator, I absolutely respect your right to control your creation. That is why I was willing to attribute you as soon as you commented and told me who you were, and I would have been more than happy to add a link to your site, which I do here. (It’s good stuff). I would have added a link to your site if I had found it, but the problem was that I did not find the image on your deviant art page, but another that had used, who likely got it from another source. The way I found the image made it next to impossible to track down the image source.

Which is a problem, I’ll admit. That is the nature of the digital sphere I was writing about earlier.

I have taken the image down, as that seems to be your desire. However, I would point out that the fact that Holden Caulfield is not in the public domain. Your illustration of the character would likely qualify as a derivative work, and as the text of the article demonstrates J.D. Salinger still owns the valid copyright in the character. While a creative interpretation, I think it is problematic to use it as an example.

Also, I’m wondering what your experience is trying to police your image. I gather that you are having this problem with more than one outlet. What are other sites saying?

willie jimenez October 7, 2009 at 5:54 am

the other sites just apologized and add my name. your the only one that tried to sorta justify your actions. and failed to apologize.

i can draw whatever and who ever i want, that is the freedom of art. it’s just if the copyright belongs to some ones eles i can’t sell prints or draw a comic about it. what i did is ok because i’m not making money. it was a fan pic. but i still own the rights to the illustration itself. not even J.D. Salinger could have used that image without asking if he was alive.

your work! is different, this is or at least i seems to me. more like a news article then some random rambling on a blog or forum. therefor the rules change. and like i said before its your job to state where you got all you info and sources. and that includes stating somewhere where you got you images.

you can take my pic down you can leave it up, i don’t care. you still don’t get it cuase you still out a few other illustration up there without permission. if your gonna use it use it right, it’s the whole point. learn to admit what you did instead of make cheap excuses.

later…

Sean McGilvray October 7, 2009 at 9:11 am

@willie jimenez,

I’m not going to argue with you. I will say that I agree absolutely that the image should have been attributed to you from the beginning. I apologize for that and I did so as soon as you brought it to my attention. Then I voluntarily took it down because you seemed offended and I have no desire to go against the wishes of the artist of a work.

Thanks for your comments.

Joshua Auriemma October 7, 2009 at 9:41 am

@willie jimenez, I would like to point out that while ethically it may be the case that attribution is ideal, legally I disagree that we have any obligation whatsoever to attribute thumbnail images.

The claim that using a tiny thumbnail in a news article is akin to using an entire work is completely unreasonable and incorrect in the eyes of the law. Sean’s use of the thumbnail was completely legal as Fair Use under Section 107 of the Copyright Act. In addition, many of your claims are flatly incorrect and inconsistent with well-decided laws within the United States.

Sean attributed you when you identified the work as your own. It was more than he had to do, but he wanted to give you credit as soon as he was able. We are not benefiting from your work in the same way that you benefit from it. We used it to illustrate a point, rather than benefit from the aesthetic value of the artwork itself. No one is reading the article due to your work that wouldn’t have read it if your image were not there. I suggest that you read up on Section 107, because you should recognize that by creating anything, anyone has the right to reproduce it without your permission so long as the use is consistent with Section 107 of the Copyright Act. We have used it in such a way, and therefore did not and do not require your permission.

In the end, your correspondence with respect to this issue has resulted in us removing the thumbnail and therefore the attribution on which you rely so heavily. I wish you a long and successful career . . . but no, you will not get an apology.

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