J.D. Salinger is Dead and the Studios are Salavating Over His Copyrights

J.D. Salinger is dead. Sorry to break this to you. I loved “Catcher in the Rye”, but he’s gone and — well, on to business.

So what happens to the copyright in this book, and other JDS works now that he’s gone (and what are the chances that a studio exec makes his mark by getting his mitts on the film rights to Holden Caufield et al)? The answer is . . . it depends. That’s lawyer speak for a whole lot of factors have to be known before we know what — if anything — will happen.

First the statutory benchmarks, and then I’ll speculate wildly. The copyright in all JDS works which currently exist (assuming all have a valid copyright at this point, which they may not if, e.g. he published anything without the copyright notice before 1977, or if he failed to renew any works published before 1964) will survive for at least another 70 years. Catcher in the Rye was published in 1951, and assuming it had a proper copyright notice and the copyright was renewed, the copyright in it will expire in 2046 (95 years after publication). Actually, I read that Salinger’s last work ran in the New Yorker in 1965, so it would seem that all of his published works would fall into the public domain at about the same time — again assuming they had the notice and were renewed. This means that, if the studios can wait that long — and if they’re still in business by then — they can each come out with their own “Catcher” movie in 2046. (The unpublished works they can take for free in 2080 — the copyright on them will expire then.)

Of course, if the studios don’t want to wait until 2046, they can start trying to negotiate with JDS’s heirs or assigns now, assuming they did not inherit the same reclusiveness gene. So with whom would they negotiate? Who owns the copyright in CITR? Who knows. JDS could have given that as a gift in his will (if he had one), or he may have let it pass by descent if he died without a will. Each state has its own rules regarding testamentary passing of property; in California, it would go to his spouse if she survived — I don’t think he had one, but anyway — or to his kids. If he made a gift of it, it could have gone to anyone: friend, lover, a prep school, etc. He could even have selected someone out of the phone book and given it to them. So we don’t yet know who owns the copyright, and thus who the studios will have to suck up to — uh, negotiate with.

Moreover, JDS could have sliced and diced the copyright in any of his works any way he wanted. For example, he could have given film rights to you, theatrical rights to me, and republication rights to his son. Or he could have stated that while we each have these right, we have to trade them with each other every five years. The beautiful part of the copyright “bundle of rights” is that it can be divided any which way the owner wants (think copyright-veg-o-matic; it can slice, dice, or leave it whole). Now, JDS could also have given all — or any part — of the rights away, but said “If you ever sell this work to the movies, you lose the copyright interest, and it goes to X.”

My best guess is pretty plain vanilla: JDS gave all rights to his son, and his son will have the right to decide what to do with it. From a practical/business standpoint, the value of the work (for sale to film) will only diminish as we get closer to 2045, so selling sooner rather than later makes the most business sense. The question will be, does the new owner value JDS’s desire over his/her own ability to strike it rich. I’m an optimist: I say yes, but you never know, maybe he left the rights to a Republican.

Jonathan Pink is a copyright and trademark lawyer in the Irvine (Orange County) office of Bryan Cave, LLP. He regularly litigates high stakes intellectual property and commercial business disputes. He can be reached at 949-223-7173, or at jonathan.pink@bryancave.com