Fall 2009

Holden Caulfield Lives: Court Rejects Fair Use Defense to Protect J.D. Salinger From Infringing Work

Holland & Knight Newsletter
Gordon P. Katz

J.D. Salinger’s Catcher in the Rye remains one of the most popular works of post-World War II American fiction. First published in 1951, around 250,000 copies of the work are sold each year, with total sales of more than 65 million. The novel’s antihero, Holden Caulfield, has long been an icon for teenage rebellion and defiance.

Fast forward to 2009. Swedish author Frederick Colting, writing under the pseudonym John David California, pens the book, 60 Years Later (60YL), an admitted sequel to Salinger’s classic work. Colting’s novel features as its central character a 76-year-old man named Mr. C, an elderly version of Caulfield. In 60YL, Mr. C., instead of being at a prep school, is in a retirement home.

Upon learning of the work’s existence and plans to publish it in the United States, the usually reclusive Salinger filed suit in May 2009 in U.S. District Court in Manhattan to block the manufacturing, publishing, distribution, promotion and sale of 60YL or any portion thereof. After extensive argument and briefing, Judge Deborah Batts on July 1, 2009, entered the requested order as a preliminary injunction.

Judge Batts’ decision begins with the findings that the character of Holden Caulfield “is sufficiently delineated so that a claim for infringement will lie,” and that “there is substantial similarity between Catcher and 60YL, as well as between the character Holden Caulfield from Catcher, and the character Mr. C. from 60YL, such that [publication of 60YL] was an unauthorized infringement of [Salinger’s] copyright.”

The District Court decision whether to grant the requested preliminary injunction turned on its analysis of whether Colting’s novel, 60YL, and its use of the protagonist Mr. C, constitute fair use of Catcher under 17 U.S.C. §§ 107(1)-(4). Judge Batts noted at the outset that fair use was designed “to mediate between … two sets of interests” – property rights granted creative works, and the ability of authors, artists and others to express themselves “by reference to the works of others.” Application of the four factor fair use analysis set forth in Section 107 – the purpose and character of the use, the nature of the copyrighted work, the amount of the work used, and the effect of the use on potential or additional commercial use – favored Salinger, found Judge Batts.

The heart of Colting’s fair use argument was that 60YL and his character of Mr. C were parody, and, as such, were protected “transformative” material. To meet the parody test, Judge Batts, quoting the U.S. Supreme Court’s 1994 decision in Campbell v. Acuff-Rose Music, Inc., observed that the new work must, at least in part, “comment” on the prior author’s work. But “if the … commentary has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another’s word diminishes accordingly (if it does not vanish).”

So it was with 60YL and Mr. C. In Judge Batts’ view, Colting’s parody argument was a “post hoc rationalization” that lacked credibility. “What do they get from the 76 year old Mr. C. They get much the same kinds of observations and reflections [as in Catcher] but coming from a 76 year old … which is anything but parodic …”

To some degree, Colting hung himself by his own p’tard. Judge Batts noted that Colting, in public statements made prior to the filing of the complaint, had stated that his work was not a parody or critique of Catcher, but a tribute and sequel. For example, Colting is quoted as saying that he wrote the book because “he’d always wondered what happened to Caulfield … and that Caulfield deserves to have another life than just his 16 years.”

Judge Batts’ decision, however, does not appear to be the end of the case. Colting in late July 2009 sought review of the decision in the Second Circuit. Colting’s counsel are hoping that the Second Circuit will focus on the public’s First Amendment right to read 60YL, the content of 60YL itself, and not so much the marketing materials which described 60YL as a Catcher sequel.

Colting has been joined in his appeal by amici from The New York Times Company, Gannett, AP and The Tribune Company. They take issue with the District Court’s entering of a preliminary injunction barring publication and distribution of 60YL. The amici urge that, even if Salinger turns out after trial to be correct on the merits of the fair use issue, the First Amendment precludes prior restraint of 60YL since Colting’s novel is not naked piracy – but arguably a transformative work – and because money damages could provide Salinger an adequate remedy for any financial loss.

We now wait for the Second Circuit to be heard.

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