Swedish author Fredrik Colting used the pseudonym J.D. California in promoting his unauthorized "sequel." He appealed the July injunction, and yesterday the Second U.S. Circuit Court of Appeals in New York held a hearing on the matter.
Regular readers of this blog will already be familiar with U.S. Copyright law's Fair Use test. The test has four factors which determine whether the use of another artist's work qualifies as fair use. The four factors are:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;Please note #2 of the four factors above, which refers to the "nature" of the original copyrighted work. If the artist creating a derivative work "transforms" the original work into something new and different, he has a better chance of winning a fair use case.
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
During the J.K. Rowling infringement case, I cited an article by attorney Jonathan Band titled "Educational Fair Use Today," which argued that, even when a work is derivative, "repurposing" it or "or placing it in a new context may be sufficient to render a use transformative."
The lawyer for Colting was quoted in an Associated Press article saying his client's new work was "highly transformative with enormous amounts of commentary and criticism."
According to the AP story, the Catcher in the Rye case will also address another point:
The three-judge panel of the 2nd U.S. Circuit Court of Appeals expressed doubts about whether a lower-court judge heard enough evidence before blocking the U.S. publication this summer of "60 Years Later: Coming Through the Rye."Salinger's attorney's argument focuses on #4 of the four factors. She believes Colting's work would impact her client's ability to publish his own sequel to Catcher.
Go here to read the Associated Press article, which includes one of the judges' comments on the quality of the new book.
Stay tuned . . .