J.D. Salinger and Copyright’s Rule of the Shorter Term

E. Townsend Gard · 19 Vand. J. Ent. & Tech. 777

Abstract

Recently, the small publishing house Devault-Graves took on the Salinger Estate in an, almost, epic battle to determine whether the copyright term had ended on three of Salinger’s early short stories in each country around the world. Devault-Graves wanted a declaratory judgment stating that if the copyright term had expired in the United States, it would have expired in all other countries with a “rule of the shorter term” (RST). But copyright is never that simple, as Devault-Graves soon found out. This short-lived case provides a useful lens through which to view the property rights as defined by the “limited” term in copyright and the pesky concept of RST embodied in the Berne Convention. RST posits that the copyright term for a work in a given country is limited to the amount of protection that its home country gives that same work; if a work is first published in Country A, and Country A provides ten years of protection, while Country B provides one hundred years, Country B need only provide ten years of protection to that work from Country A. RST becomes a key property boundary for foreign works, marking the moment between copyright and the public domain. And yet, whether RST is applied to foreign works in a given country is often unclear, or defining RST itself becomes very complicated. In the end, RST was not a friend to Devault-Graves. The Salinger short stories (in the US public domain) turned out to have copyright terms that were much more difficult to assess worldwide and, in many cases, were still protected by copyright in many countries around the world. This Article provides an in-depth discussion of RST and how it plays out on an historical as well as a practical level. This Article ends by suggesting a three-part test to determine whether RST applies in a particular country for a particular foreign work.