Appeals Court Sends Salinger Case Back

About seven months before he died, J.D. Salinger filed suit in Manhattan's U.S. District Court against the anonymous author who used the pseudonyn John David California when releasing a sequel in the U.K. to Catcher in the Rye.

Salinger sought to prevent 60 Years Later: Coming Through the Rye from being released in the United States. The new novel had a 76-year-old protagonist called Mr. C and also features Mr. Salinger himself as a character. Where the original novel had a teenage Holden Caulfield wandering around New York after being expelled from prep school, the sequel has the aged Mr. C. escaping from a retirement home and wandering around New York.

Publishers Lunch described the lawsuit: "The complaint declares, 'the sequel is not a parody and it does not comment upon or criticize the original. It is a rip-off pure and simple'."

On June 17, 2009, U.S. District Judge Deborah Batts temporarily blocked publication of the new book. A few weeks later, the judge granted a preliminary injunction barring the unauthorized sequel from being released in the U.S.

According to Publishers Weekly, the judge ruled that the sequel "would harm the market for 'sequels and other derivative works' from Salinger ..."

In early September, I reported that the anonymous author of the sequel was actually Swedish author Fredrik Colting. He appealed the July injunction to the Second U.S. Circuit Court of Appeals in New York.

Many writers are familiar with the 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. Those 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;
(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.

Under the second factor above, 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.

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."

Salinger's lawyer argued for the fourth factor, saying the sequel would impact her client's ability to publish his own sequel to Catcher.

According to the Associated Press, "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'."

The AP proved prescient. On Friday, the Second U.S. Circuit Court of Appeals ruled, sending the case back to the U.S. District Court Judge Batts. According to SF Gate, the appeals court ordered Judge Batts "to revisit the legal basis for her decision."

SF Gate said that the appeals court pointed out: "... a plaintiff had to show the likelihood of irreparable harm to get an injunction, not just the probability of succeeding on the question of infringement."

The order read: "Although we conclude that the district court properly determined that Salinger has a likelihood of success on the merits, we vacate the district court's order ..."

Stay tuned ...

Read the SF Gate story here.