Stanford Center for Internet and Society

About a month ago, a New York District Court issued an order prohibiting the U.S. publication of 60 Years Later - Coming Through The Rye on the ground it represented a likely infringement of JD Salinger's copyrights in Catcher In The Rye. That decision has been appealed to the Second Circuit Court of Appeals, which is reviewing the case on an expedited basis.

An injunction banning a book is a big deal. It's usually called a prior restraint, and it's usually highly suspect; the U.S. Supreme Court held publication of the Pentagon Papers could not be restrained despite the government's claim that national security would be jeopardized.

In 60YL, it's Holden Caulfield who's in jeopardy. An aged Caulfield has escaped from a retirement home instead of a prep school, and faces an unlikely threat: Salinger himself. The conceit of 60YL is clever. It's written as if Salinger himself has ended his decades of seclusion to "finish what [he] started." Salinger is trying to kill Caulfield -- his "monster" -- "bringing him back just so [he] can kill him." But the plan goes awry, and Caulfield won't die. As Salinger and Caulfield play out their game of cat and mouse through a second adventure in New York, they urge us to ponder the relationship between an author and his work.

The District Court's decision to enjoin publication of 60YL puts way more than just poor Holden in jeopardy. There are profoundly important free speech rights at stake any time a court bans publication of a book, and they include those of the public as well as the author and publisher. Those interests were simply ignored in the Court's analysis.

This case does raise some difficult copyright issues. But whether the book is likely to be held an infringement at the conclusion of the case or not, courts have to consider and balance all of the important interests at stake before banning publication of a book -- or any expressive work. This Court just didn't do that.

Part of the problem is the law about when courts may enjoin books and other expressive works has become confused. So today, we and our colleagues at Georgetown and the University of California filed an amicus brief on behalf of the American Library Association, the Association of Research Libraries, the Association of College and Research Libraries, The Organization for Transformative Works and the Right to Write Fund.

Our brief explains the errors we believe the District Court made in issuing this injunction, and what we believe the proper standard should be. It urges the Second Circuit to adopt a more stringent test for issuing preliminary injunctions against books and other expressive works, and to reject the narrow interpretation of the fair use doctrine applied by the District Court.

Read the brief here.

UPDATE: Apparently, we are not alone in our concern. The New York Times and other press organizations have also submitted an amicus brief, which you can read here. Public Citizen has also submitted its own amicus brief, which is available here.

In the answer to The AP's counterclaims we filed yesterday, we included a dozen examples of AP photographs The AP sells, which consist almost entirely of the copyrighted artwork of Fairey and other artists.

Today, The AP issued a statement accusing Fairey of "making attacks" on The AP and "deliberately omitt[ing]" the "newsgathering context in which the various images were generated and in which they are used."

The funny part about this is Fairey doesn't allege The AP's photos are illegal or infringing, much less "attack" The AP. The point is very simple: The AP applies an obvious double-standard. It is happy to sell, through its image licensing database, photographs that are really just bare copies of artists' work, yet it condemns Fairey for using an AP photograph in a far more creative, transformative, expressive and defensible way. Fairey's allegations don't say the AP shouldn't be allowed to do what it does. These allegations -- and the AP's response -- just demonstrate The AP demands wide leeway for its use of other artists' work, but insists that others, like Fairey, are entitled to much less leeway.

As for "newsgathering," The AP misses the point again. While the photographs may have originally been taken for the purpose of newsgathering, they are presently for sale on The AP's image licensing database as a commercial product for "professional photo buyers."

So let's get this straight: We're not alleging The AP's photographs infringe anyone's rights, or demanding The AP stop doing the excellent work it does. We simply contend The AP should have to play by a consistent set of rules. We contend fair use should apply broadly -- for everyone. If The AP's bare copies of other artists' work are protected by fair use, then Fairey's significantly more transformative and expressive work has to be, too.

We're thrilled to report the Court has upheld our challenge to the constitutionality of the URAA's restoration of copyrights in public domain works. Today, the Court granted our summary judgment motion, holding the URAA violates the First Amendment insofar as it suppresses parties' rights to keep using works they exploited when those works were in the public domain.

Needless to say, this is a big deal. It is the first time a court has held any part of the Copyright Act violates the First Amendment and the first time any court has placed specific constitutional limits on the government's ability to erode the public domain. It is also the culmination of a lot of hard work by a lot of CIS lawyers dating back to 2001, including myself, Larry Lessig, Chris Sprigman, Edward Lee, Jennifer Granick, Lauren Gelman, Colette Vogele, Julie Ahrens, Chris Ridder, Sarah Pearson and others.

I expect there will be more to come, including a return to the Tenth Circuit. Look for updates here. In the meantime, Judge Babcock's order is attached below.

Last week, the Associated Press accused Los Angeles visual artist Shepard Fairey of infringing copyrights the AP asserts in a photograph Fairey used as a visual reference in creating the Obama Hope poster that became a ubiquitous symbol of President Barack Obama's campaign. Yesterday, we filed suit against the AP on Fairey's behalf to vindicate his rights, and disprove the AP's accusations.

Read the full complaint here.