June 5, 2015
The legal dispute over foreign editions of J.D. Salinger stories
by Nick Davies
The estate of J.D. Salinger is, once again (or still), embroiled in a copyright dispute, this time involving the sale of foreign editions of the late author’s work. Andrew Albanese reports for Publishers Weekly that the J.D. Salinger Literary Trust has filed a motion against a publisher, the Devault-Graves Agency, contesting the publisher’s lawsuit against them.
Devault-Graves has been able to publish the collection, Three Early Stories, due to the fact that the works had fallen into the public domain in the US even before Salinger’s death. As they’ve moved on to license foreign editions of the book, though, they say that the estate has “thwarted…attempts to publish and distribute international editions,” as reported by PW’s Clare Swanson in March. Darrin Devault and Tom Graves hold that the Salinger estate “tortiously interfering with [its] contractual agreements with foreign publishers,” and are asking for a ruling to affirm their right to license and sell the book internationally.
Now, though, Salinger attorneys have fired back, arguing that Devault-Graves relies too heavily on Article 7 of the Berne Convention, which, Albanese explains, “generally mandates that copyright protection abroad cannot exceed the term mandated in a work’s country of origin.” They point out that the article is subject to numerous caveats, such as the copyright laws in other countries, as well as their own interpretation of the Berne Convention. The attorneys state:
To properly determine the parties’ rights in each potentially relevant country would be extraordinarily complex. 168 countries have signed on to Berne, and an individualized inquiry into the laws of each of those countries would be needed to answer the question that Plaintiff asks this Court to determine in one fell swoop, for the entire world… These issues are best left to foreign courts.
Therefore, they conclude, the blanket, one-size-fits-all interpretation by Devault-Graves is insufficient. Furthermore, they highlight a recent case in Berlin, where a court ruled that publisher Piper Verlag could not sell copies of Three Early Stories. Albanese lays out the details:
In their complaint, Devault-Graves attorneys claim the Salinger Literary Trust “does not own, and has never owned the copyrights” to the stories in question, and notes that a blanket copyright assignment by Salinger to the Salinger Literary Trust shortly before the author’s death in 2010 does not include the works, which had already entered the U.S. public domain. But the German court held that since Salinger had clearly intended “an encompassing assignment of rights” to the Trust, that was sufficient under German copyright law for the Trust to subsequently claim rights which Salinger may have been “unaware of,” including foreign rights.
The Salinger Literary Trust’s lawyers are asking for the publisher’s case against them to be thrown out.
Nick Davies is a publicist at Melville House.