Protecting Franny and Zooey : Publishing: An overhaul of copyright law would settle the dispute about access to unpublished material.

America’s foremost recluse, J.D. Salinger, has teamed up with the ghost of L. Ron Hubbard, not for a voyage to the twilight zone, but to battle two pesky writers who have dared to write unauthorized biographies of these legendary men.

Congress has entered the fray and is considering legislation to settle the key issue: how much material can a biographer use from the subject’s unpublished writings?

Under current copyright law, only writers can authorize the commercial exploitation of their work; that’s how they earn a living, pay the rent and feed their children. But Congress built some wiggle room into the law to avoid tying the hands of scholars, journalists and other authors who need to use some of the original work. Too little protection for the original would discourage the creation of books just as surely as too much protection would discourage scholarly analysis and limit access of the public to important information. The balance between these two undesirable results is as necessary as it is difficult to achieve.

Congress and the courts tried to balance both objectives with a legal doctrine called “fair use.” You can use some of the other person’s material, but not too much. The doctrine gets a little fuzzy when you ask how much is too much. And when the original author has not yet published the work in question and has not yet milked it for all of its commercial value, the courts have an even tougher time deciding what’s fair and what’s not fair. Enter Congress.

The courts have at least narrowed Congress’ field of inquiry. All sides agree that a biographer can take facts, ideas, historical theories and small amounts of text from a subject’s unpublished work. The battle now seeks to define exactly how much material the biographer can take, and for what purpose.

To solve the problem, Congress could direct the courts to stop giving unpublished works a privileged status, and apply the fair-use doctrine equally to both published and unpublished work. But simply dropping the distinction by fiat might create new problems.

Consider the case of Salinger’s unpublished letters. They are remarkable creations--the work of a genius. Twenty years hence, the publication of these letters may keep the aging author out of the poorhouse. If Ian Hamilton, his would-be biographer, published all the juicy parts, their future value would plummet.

The judges considered these equities in blocking Hamilton’s extensive quotation, which may have seemed to them a crass exploitation of the style and substance of the American original. With Salinger’s luminous language, Hamilton’s biography had great power and appeal; without it, the book was humdrum.

The equities of the L. Ron Hubbard case seem to some to tilt in the other direction and underscore the shortcomings of ironclad rules. The literary value of the Scientology founder’s unpublished letters is nil, and some maintain that Hubbard’s heirs are using the copyright laws to block an unflattering biography. If the courts had distinguished between the Salinger case and the Hubbard case, Congress would not have had to jump into the fray.

The task of drafting appropriate statutory language should not be underestimated. Fair use does not lend itself to pat formulas. It is an equitable doctrine that needs room to breathe, to develop, to be molded to very specific facts. The critical question that Congress must resolve is whether the proposed legislative fix will help or hinder judges in their effort to sort out this tricky legal thicket.