Memphis-based independent publisher The Devault-Graves Agency filed a lawsuit against the J.D. Salinger Literary Trust in a Tennessee court on March 16, claiming that the estate has, without legal basis, thwarted the press's attempts to publish and distribute international editions of its collection of early Salinger short stories, Three Early Stories.
Devault-Graves released the U.S. edition of the title, which includes three stories from early in Salinger's literary career which had fallen into the public domain, in July 2014. A culmination of what the publisher's Tom Graves described to PW in July as an "exhaustive" and expensive process that involved a team of copyright lawyers, the book is, he said, the first legitimate Salinger book to be published in more than 50 years. Upon its release, the Salinger estate, after a brief investigation, confirmed it would not halt Devault-Graves's publication in the U.S. But now, as the publisher attempts to sell the work abroad, Devault-Graves asserts the estate is "tortiously interfering with [its] contractual agreements with foreign publishers,” including those in the U.K. and Japan.
For its part, the Salinger estate contends that Devault-Graves is of the “erroneous view” that because the stories were in the public domain in the U.S., they would also exist in the public domain in countries where they were not previously published. This notion was asserted in a letter sent by the estate's lawyer, Cynthia Arato, to Devault-Graves’s foreign literary agent, Sebes & Van Geldren, on November 14. “This analysis is fundamentally flawed,” the letter continues. “The publication of Three Early Stories in any non-U.S. country that is a member of the Berne Convention will infringe the Trusts’s intellectual property rights.” Arato argues that the copyright protection exists in countries which have adopted the Berne Convention, an international copyright treaty, for the life of the author plus 50 years. (Salinger died in 2010.)
Devault-Graves fired back, insisting that because “Salinger at no time ever held the copyright to those three stories," and because they ultimately passed into the public domain, they are protected by a tenet of the Berne Convention in which copyrights abroad cannot, unless the local laws stipulate otherwise, exceed the term of copyright dictated by the country of origin.
The stories, published in the 1940s by Story magazine and the University of Kansas City Review, were in the public domain in the U.S. by 1972. According to Graves, it is “ridiculous” that the trust would claim rights globally, but, admitted that if there is a country where they have a lawful claim, the publisher will stand back. “If [the estate] is right, we’ll concede it to [it],” said Graves. “If [the estate] has an exception to the rule we’ll abide by [it].” Devault-Graves has signed contracts with 13 foreign publishers.
Graves said that with the suit, he and his business partner, Darrin Devault, are seeking a ruling that affirms their right to sell the work internationally without obstruction, and damages for disruption in foreign rights deals thus far, which he billed as “substantial.”
Acknowledging that Salinger was infamous for protecting his privacy, along with his copyright, Graves said that, nonetheless, this is a different situation. “[Salinger] was protective of what was his. I don’t fault him for any of the litigation he did in the past, the works were copyright protected. This is a whole different situation. I really think [the estate has] gone beyond the boundaries of where they should.”
