JOHN DEAN: My immediate reaction was: this is another scam like the Howard Hughes book, when Clifford Irving pretended to have Howard Hughes’s permission. Salinger put it to sleep very quickly when he filed a lawsuit and prohibited People from using the interview.
ASSOCIATED PRESS: A settlement has been reached in a suit filed by J. D. Salinger against a New Yorker he accused of impersonating him and passing off his writings as those of the novelist and short-story writer.
Judge David N. Edelstein of the United States District Court approved the settlement in which the defendant, Steven Kunes of Manhattan, agreed to be permanently enjoined from representing by any means that he is associated with or ever met Salinger.
The agreement also barred Mr. Kunes from exhibiting, transmitting or distributing documents, writing or statements attributed to Mr. Salinger. Mr. Kunes is also required to collect and turn over any such documents or writing for destruction. Mr. Salinger, in turn, agreed to withdraw his claims for monetary damages and legal costs.
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MARC WEINGARTEN: Ian Hamilton was a very respected British biographer. He had written a biography of Robert Lowell that was quite well received. Hamilton was known for heavily leaning on letters in his biographies. He decided that he was going to tackle the biographer’s dream project: a book about Salinger. His big mistake was obtaining a cache of Salinger’s letters and using them as the narrative spine of the book.
IAN HAMILTON: Four years ago [in 1983], I wrote to the novelist J. D. Salinger, telling him that I proposed to write a study of his “life and work.” Would he be prepared to answer a few questions? . . . I assured him that I was a serious “critic and biographer,” not at all to be confused with the fans and magazine reporters who had been plaguing him for thirty years. . . . All this was, of course, entirely disingenuous.
J. D. SALINGER, excerpt from letter to Ian Hamilton, undated:
Dear Sir:
You say you’ve been commissioned by Random House to write a book about me and my work (you put it, perhaps undeliberately, in just that order), and I have no good reason to doubt your word, I’m exceedingly sorry to say. . . . I’ve despaired long ago of finding any justice in the common practice. Let alone any goodness or decency.
Speaking (as you may have gathered) from rather unspeakably bitter experience, I suppose I can’t put you or Random House off, if the lot of you are determined to have your way, but I do feel I must tell you, for what very little it may be worth, that I think I have borne all the exploitation and loss of privacy I can possibly bear in a single lifetime.
SHANE SALERNO: There had been dozens and dozens of books and articles about Salinger’s work; this threatened to be the first book to examine his life, which is what unnerved him.
PHOEBE HOBAN: Salinger’s letter to Hamilton brought up a good point: apart from a criminal, nobody comes under as much scrutiny as the subject of a biography.
Jason Epstein [Hamilton’s editor at Random House] wrote back to Salinger, saying that he was indeed a worthy and suitable subject for a biography, that he was a public figure, and that a biographer had a right to explore his life and work.
Ian Hamilton, the author of In Search of J. D. Salinger.
SHARON STEEL: [In a letter to Michael Mitchell,] Salinger has “murder in my heart” because a “sore English prick,” otherwise known as Ian Hamilton, has been digging around for material for a biography of the author’s life, commissioned by Random House. . . .
[In a December 25, 1984, note to Mitchell written on the back of a Christmas card,] Salinger seems particularly depressed and detached, and hell-bent on hiding it. He writes of visiting London to see Peggy over the holiday, who, by some miscommunication, went to Boston. So Salinger decided to knock around the city alone. “I feel closed off from all general or personal conversation, these years, and consort with almost no one but one or two local drunks or distant madwomen.” He’d rather not do anything unless it involves the writing he’s working on. Salinger wishes Mitchell “intactness and sanity” for 1985.
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JOHN DEAN: The U.S. law for letters is not unlike England’s common law: a letter has really two aspects. One is the physical aspect of the letter and the other is the content of the letter. The person who receives the letter owns the physical possession of the letter but not the content of the letter by the author. The author retains the copyright. Only the physical letter can be sold. Salinger’s lawyers notified Hamilton of their client’s displeasure with his use of Salinger’s letters in the galleys of Hamilton’s biography. They argued that Hamilton’s use of the Salinger letters would prevent Salinger from using them for his own commercial use at some future point. They demanded that Hamilton take the letters out of the book. Hamilton tried to appease Salinger by paraphrasing from the letters. But Salinger wasn’t happy with the paraphrasing, sued, and was issued a temporary restraining order on the book by a New York district court.
PHOBE HOBAN: [Hamilton] just used his thesaurus to come up with synonyms. Instead of having Salinger’s beauty and elegance of language and original cadence, he came up with these heavy-handed, awkward, clumsy, hideous parodies of Salinger’s sentences that anybody would’ve been injured and insulted by.
JOHN DEAN: Salinger said, “No. This is not acceptable. I’m not happy with your modification, and we’re going forward with this [lawsuit].” There’s nothing private about a lawsuit. It’s probably the most exposed way you can go, because discovery is open, and [Salinger] knew he’d have to come forward [to testify]. He knew he could lose, but he was willing to take that gamble and try to control his writings and his letters.
DAVID SHIELDS: Why was he willing to take such a gamble? According to several of Salinger’s ex-girlfriends we spoke with, one of Salinger’s primary motivations was to prevent the exposure of his many epistolary relationships with very young girls—his pursuit, over many decades, of girls as young as fourteen.
PHOEBE HOBAN: The irony was overwhelming: the most famously private writer had to testify in court in Manhattan and make his very private personal letters public by filing them at the Library of Congress. As a result of the litigation, Salinger not only testified but also had to register all seventy-nine disputed letters at the Copyright Office, where any person willing to pay $10 can peruse them.
It’s remarkable to have a window into Salinger’s life through his actual postcards and letters, which were written in his actual hand. It really is like reading one of his characters’ diaries or something like that—a way to have the most intimate possible contact with this impossibly reclusive person.
LILLIAN ROSS: That terrible ordeal they put him through. . . . I had to go to court with him and hold his hand. He was so upset. He would come over to my place and wait until we’d have to go and I’d go with him. Literally, sometimes I’d have to hold his hands he’d be shaking so badly. Afterwards I’d make him chicken soup at the end of the day. He was such a sensitive and fragile person, so vulnerable to the world. He was such a sweet man.
J. D. SALINGER (October 7, 1986):
Q [ROBERT CALLAGY, ATTORNEY FOR RANDOM HOUSE]: “At any time during the past 20 years have you written any fiction which has not been published?”
A [SALINGER]: “Yes.”
Q: “Could you describe for me what works of fiction you have written which have not been published?”
A: “It would be very difficult to .”
Q: “Have you written any full-length works of fiction during the past twenty years which have not been published?”
A: “Could you frame that a different way? What do you mean by full-length work? You mean ready for publication?”
Q: “As opposed to a short story or a fictional piece or a magazine submission.”
A: “It’s very difficult to answer. I don’t write that way. I just start writing fiction and see what happens to it.”
Q: “Maybe an easier way to approach this is, would you tell me what your literary efforts have been in the field
of fiction within the last twenty years?”
A: “Could I tell you or would I tell you? . . . Just a work of fiction. That’s all. That’s the only description I can really give it. . . . It’s almost impossible to define. I work with characters, and as they develop, I just go on from there.”
ROBERT CALLAGY: My thought is that he was not the J. D. Salinger who had been the vibrant novelist back in the 1950s, but he was definitely angry or disturbed or upset about something. Something must have happened [long ago] because when I asked him about letters written around that time, I’d say, “What did you mean?” And he’d say, “The young boy meant . . .” I thought it was odd that he’d describe himself in the third person. In all of the depositions that I’ve done, no one has ever referred to himself in the third person.
DAVID SHIELDS: He was trying to tell himself that he was no longer that young boy.
IAN HAMILTON: There is an overexcited, wound-up tone to those letters. He obviously did see some terrible things [during the war], and in some way I think he may have cracked up.
MORDECAI RICHLER: The letters are also, as Mr. Salinger noted with hindsight in court, occasionally gauche or effusive. “It’s very difficult,” he said. “I wish . . . you could read letters you wrote forty-six years ago. It’s very painful reading.”
ROBERT CALLAGY: At one point there was a sad episode that occurred when during one of the breaks he asked me for a Manhattan telephone book. I got it and gave it to him. He was clearly having trouble finding the number he wanted, so I said, “Can I look up the number for you?” And he said, “I’m trying to find my son’s phone number. He lives over by the Roosevelt Hotel.” And then he said he couldn’t find the number in the book, so he was not going to be able to contact him, which I thought was very sad.
MARK HOWLAND: [My high school students and I] read the actual deposition, which was some forty pages long, complete with instructions to Salinger’s lawyer not to interrupt Hamilton’s lawyer [Callagy]. It’s about as close as we felt we were ever going to get to the man, to hearing his words, even though they were just transcribed on a paper. Just when things started to get interesting, when the lawyer started asking about what he was working on now, how often he wrote, did he plan to publish, we turned the bottom of the last page and—blank. There was nothing else. Don’t know what happened to whatever was left of the transcription, but it wasn’t there.
PETER DE VRIES: If there are gaps in your story, they’re gaps Salinger wants in the story.
JOHN WENKE: There’s a part of him that enjoys the power game that went on when the Ian Hamilton biography was making its way through the courts. He wanted to be able to assert ownership of the letters that somebody else owns. An actual recluse or mystic wouldn’t care.
JOHN DEAN: I thought how little Salinger really needed to do [to make his case], other than he had to appear [for the deposition]; he had no choice because otherwise he could have been defaulted out of the litigation. He had to establish that he still was writing, that he was confident in his ability to write, and especially, that he had some use he could make of these letters, not that he couldn’t have maybe made the same claim to pass them on to his estate. I think it was stronger in the eyes of the court if he could make the point: Indeed I am still writing actively, and what I’m writing is none of your business; however, in that context, these letters are of interest to me.
PHOEBE HOBAN: Salinger said, “You’re chiseling away at my property at the same time as you’re saying you’re not stealing it.”
JUDGE PIERRE N. LEVAL: It is my view that the defendants have made a sufficiently powerful showing to overcome plaintiff’s claims for an injunction. The reasons that support this finding are: Hamilton’s use of Salinger’s copyrighted material is minimal and insubstantial; it does not exploit or appropriate the literary value of Salinger’s letters for future publication. . . . The biographical purpose of Hamilton’s book and of the adopted passages are quite distinct from the interests protected by Salinger’s copyright. . . . Although [Salinger’s] desire for privacy is surely entitled to respect, as a legal matter it does not override a lawful undertaking to write about him using legally available resources.
JOHN DEAN: [Leval] ruled against Salinger, finding that Hamilton had made fair use of Salinger’s letters. This was a very good district judge. He was a very fair and objective judge, and you couldn’t ask for a better trial judge. Salinger’s legal team appealed the case to the U.S. Second Circuit Court of Appeals.
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JUDGE JON O. NEWMAN: In July 1983 Hamilton had informed Salinger that he was undertaking a biography of Salinger to be published by Random House and sought the author’s cooperation. Salinger refused, informing Hamilton that he preferred not to have his biography written during his lifetime. Hamilton nevertheless proceeded and spent the next three years preparing a biography titled J. D. Salinger: A Writing Life. An important source of material was several unpublished letters Salinger wrote between 1939 and 1961. Most were written to Whit Burnett, Salinger’s friend, teacher, and editor at Story magazine, and Elizabeth Murray, Salinger’s friend. A few were written to Judge Learned Hand, Salinger’s friend and neighbor in New Hampshire, Hamish Hamilton and Roger Machell, Salinger’s British publishers, and other individuals, including Ernest Hemingway.
Ian Hamilton located most, if not all, of the letters in the libraries of Harvard, Princeton, and the University of Texas, to which they had been donated by the recipients or their representatives. Prior to examining the letters at the university libraries, Hamilton signed form agreements furnished by the libraries, restricting the use he could make of the letters without permission of the library and the owner of the literary property rights.
In response to Salinger’s objections, Hamilton and Random House revised the May [1987] galleys. In the current version of the biography (the “October galleys”), much of the material previously quoted from the Salinger letters has been replaced by close paraphrasing. Somewhat more than two hundred words remain quoted. Salinger has identified fifty-nine instances where the October galleys contain passages that either quote from or closely paraphrase portions of his unpublished letters. These passages draw upon forty-four of the copyrighted letters, twenty to Burnett, ten to Murray, nine to Hamish Hamilton, three to Judge Hand, one to Machell, and one to Hemingway.
A few examples should suffice. Salinger, complaining of an editor who has rejected one of his stories—though calling it “[c]ompetent handling”—writes [that it was] “like saying, She’s a beautiful girl, except for her face.” Hamilton paraphrases: “How would a girl feel if you told her she was stunning to look at but that facially there was something not quite right about her?”
Salinger writes, “I suspect that money is a far greater distraction for the artist than hunger.” Hamilton paraphrases, “Money, on the other hand, is a serious obstacle to creativity.”
Salinger, conveying the adulation of Parisians toward Americans at the liberation of Paris, writes that they would have said, “What a charming custom!” if “we had stood on top of the jeep and taken a leak.” Hamilton paraphrases, “. . . if the conquerors had chosen to urinate from the roofs of their vehicles.”
The breach of contract claim was based on the form agreements that Hamilton signed with Harvard, Princeton, and University of Texas libraries. Salinger alleged that he was a third-party beneficiary of those agreements.
As to the standard, we start, as did Judge Leval, by recognizing that what is relevant is the amount and substantiality of the copyrighted expression that has been used, not the factual content of the material in the copyrighted works. However, that protected expression has been “used” whether it has been quoted verbatim or only paraphrased.
The “ordinary” phrase may enjoy no protection as such, but its use in a sequence of expressive words does not cause the entire passage to lose protection. And though the “ordinary” phrase may be quoted without fear of infringement, a copier may not quote or paraphrase the s
equence of creative expression that includes such a phrase.
In almost all of those instances where the quoted or paraphrased passages from Salinger’s letters contain an “ordinary” phrase, the passage as a whole displays a sufficient degree of creativity as to sequence of thoughts, choice of words, emphasis, and arrangement to satisfy the minimal threshold of required creativity. And in all of the instances where that minimum threshold is met, the Hamilton paraphrasing tracks the original so closely as to constitute infringement.
IAN HAMILTON: Public awareness of the “expressive content” of Salinger’s letters was instantly extended the day after this judgment was released. The New York Times felt itself free to quote substantially not from my paraphrases but from the Salinger originals that I had so painstakingly, and—it now seemed—needlessly attempted not to steal.
ARNOLD H. LUBASCH: A biography of J. D. Salinger was blocked yesterday by a Federal appeals court in Manhattan that said the book unfairly used Mr. Salinger’s unpublished letters.
Reversing a lower court decision, the appeals court ruled in favor of Mr. Salinger, who filed suit to prohibit the biography from using all material from the letters, which he wrote many years ago.
“The biography,” the appeals court said, “copies virtually all of the most interesting passages of the letters, including several highly expressive insights about writing and literary criticism.”
In a footnote, the appeals court’s decision cited a letter . . . [in which Salinger] criticized Wendell Willkie, the 1940 President candidate, saying, “He looks to me like a guy who makes his wife keep a scrapbook for him.”
The decision included another footnote referring to a 1943 letter in which “Salinger, distressed that Oona O’Neill, whom he had dated, had married Charlie Chaplin, expressed his disapproval of the marriage in this satirical invention of his imagination: ‘I can see them at home evenings. Chaplin squatting grey and nude, atop his chiffonier, swinging his thyroid around his head by his bamboo cane, like a dead rat. Oona in an aquamarine gown, applauding madly from the bathroom. . . . I’m facetious, but I’m sorry. Sorry for anyone with a profile as young and lovely as Oona’s.’ ”
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