Two disputes involving high profile novels have recently brought copyright infringement to the fore in the international media.
The first involves the perennial schoolteachers' favourite, "The Catcher in the Rye". Its author, JD Salinger, is seeking an injunction in the US against the writer and distributor of a book which claims to be a sequel to the classic novel. The new book is entitled "60 Years Later: Coming through the Rye" by an author called "JD California" and is dedicated to JD Salinger. Whilst the original novel focussed on the troubles of a youthful Holden Caulfield, the protagonist in California's book is an elderly angst-ridden "Mr C".
Salinger is reported to have claimed the new book infringes his sole right to use the original's characters or to write a follow-up, which he has "decidedly chosen not to". It is outlined that the sequel is not a parody, or a critique of the original, which would be likely to exempt it from copyright infringement.
Meanwhile, Bloomsbury Publishing is subject to copyright proceedings raised by the estate of children's writer Adrian Jacobs over claims that J K Rowling "copied" Jacobs' work. The claim, raised in the High Court in London, seeks an injunction to prevent sales of Harry Potter and the Goblet of Fire and either damages or a share of profits.
It is argued that the plot of the Goblet of Fire, published in 2000, borrowed "substantial parts" from Jacobs' slightly less well known "The Adventures of Willy the Wizard-No 1 Livid Land", published 10 years before the first Potter book came out.
It is claimed that both novels feature protagonists who are wizards who win wizard contests. Other similarities referred to in the claim include the idea of wizards using trains.
Jacobs' estate and Salinger may encounter difficulties in demonstrating the requisite degree of copying. The essence of copyright law is that expression of an idea is protected, but not the idea itself. In the UK infringement of this type requires reproduction of a "substantial part" of the work in question. Therefore the central idea of a work must usually have been copied in virtually identical words for infringement to be established.
Had the Salinger case arisen in the UK, success may have been found in relying on the grounds of passing off, i.e. that the public would be deceived into thinking that the "sequel" was a product associated with Salinger. However, this may depend on how the product is presented to the public. A passing off action could however have encountered issues given the awareness of the public to tribute novels/parodies, particularly of classics.
Cases of this type can provide interesting examination of the distinction between an idea and its expression, and we will keep you updated as they progress.