Connecticut Law Review Volume 45 – Issue 3

The Derivative Work Right: Incentive or Hinderance for New Literature?

The Copyright Act provides incentives to stimulate the production of artistic work for the good of the general public.  These incentives include the exclusive right to prepare derivative works, such as a sequel. This Note argues that in practice, however, the right to prepare derivative works actually stifles creativity.  Suntrust Bank v. Houghton Mifflin Company and Salinger v. Colting provide examples of legal challenges to valuable work from new authors who wrote novels based on previously published works. While both novels provided valuable commentary and critique to previous works, existing copyright law only protected one.  In 2001, the Eleventh Circuit found in Suntrust Bank v. Houghton Mifflin Company that Alice Randall’s novel, The Wind Done Gone, was a parody of Gone with the Wind, and therefore constituted fair use.  In contrast, the Second Circuit found in 2010 that Fredrik Colting would not succeed with a fair use defense because his novel 60 Years Later, Coming Through the Rye was a sequel to J.D. Salinger’s Catcher in the Rye with satiric elements, rather than a parody.

The existing regime fails to meet its intended goal of promoting the useful arts for the public because works such as 60 Years Later, Coming Through the Rye are prevented from distribution, even when the original author had no intent of preparing any derivative works to benefit the public.  This Note proposes two suggestions to improve the system.  First, this Note argues that the distinction between parody and satire should be eliminated and both forms of commentary should be given equal protection.  Second, this Note argues that the intentions of the copyright owner should be considered in determining the period of time the owner is granted the exclusive right to prepare derivative works and within the fair use analysis.

:: View PDF