Friday, April 30, 2010

2d Circuit rules in favor of JD Salinger in "Catcher in the Rye" copyright dispute

We all read the Catcher in the Rye, by JD Salinger. The book is a literary landmark that continues to impress scholars and critics today. This is why some writers try to capitalize on that book. Not an easy task.

The case is Salinger v. Colting, decided on April 30. Judge Calabresi has fun with this case, describing at length both the book and its influence over the years, as well as a few words about the reclusive Salinger (who died recently):

Catcher is a coming-of-age story about a disaffected sixteen-year-old boy, Holden Caulfield, who after being expelled from prep school wanders around New York City for several days before returning home. The story is told from Holden’s perspective and in his “own strange, wonderful, language.” Nash Burger, Books of the Times, N.Y. Times, July 16, 1951. Holden’s adventures highlight the contrast between his cynical portrait of a world full of “phonies” and “crooks” and his love of family, particularly his younger sister Phoebe and his deceased younger brother Allie, along with his developing romantic interest in a childhood friend, Jane Gallagher. While his affection for these individuals pushes him throughout the novel toward human contact, his disillusionment with humanity inclines him toward removing himself from society and living out his days as a recluse. He ultimately abandons his decision to live as recluse when Phoebe insists on accompanying him on his self-imposed exile.

Catcher was an instant success. It was on the New York Times best-seller list for over seven months and sold more than one million copies in its first ten years. Polly Morrice, Descended from Salinger, N.Y. Times, March 23, 2008. To date it has sold over 35 million copies, influenced dozens of literary works, and been the subject of “literally reams of criticism and comment.” Literary critic Louis Menand has identified Catcher “rewrites” as a “literary genre all its own.” The Holden character in particular has become a cultural icon of “adolescent alienation and rebellion,” a “moral genius” “who refuses to be socialized.”

Inseparable from the Catcher mystique is the lifestyle of its author, Salinger. Shortly after publishing Catcher, Salinger did what Holden did not do: he removed himself from society. Salinger has not published since 1965 and has never authorized any new narrative involving Holden or any work derivative of Catcher.

The defendant here is a writer, Colting, who wrote a book entitled, "60 Years Later: Coming Through the Rye," which "tells the story of a 76-year-old Holden Caulfield, referred to as 'Mr. C,' in a world that includes Mr. C’s 90-year-old author, a 'fictionalized Salinger.' The novel’s premise is that Salinger has been haunted by his creation and now wishes to bring him back to life in order to kill him. Unsurprisingly, this task is easier said than done. As the story progresses, Mr. C becomes increasingly self-aware and able to act in ways contrary to the will of Salinger. After a series of misadventures, Mr. C travels to Cornish, New Hampshire, where he meets Salinger in his home. Salinger finds he is unable to kill Mr. C and instead decides to set him free. The novel concludes with Mr. C reuniting with his younger sister, Phoebe, and an estranged son, Daniel."

I guess you could call this book "fan fiction." Salinger sought and received an injunction in district court against "60 Years Later." You can get an injunction at the start of the case if you are going to suffer "irreparable harm" without the injunction and you have a likelihood of success on the merits of the case. The Court of Appeals affirms, sort of, but not before analyzing recent Supreme Court authority in patent infringement cases, applying that case in copyright cases. That case is eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006).

Under the new standard, you cannot presume that a copyright violation will create irreparable harm necessary for a preliminary injunction. That issue will be for the district court on remand. The Second Circuit observes, "This is not to say that most copyright plaintiffs who have shown a likelihood of success on the merits would not be irreparably harmed absent preliminary injunctive relief. As an empirical matter, that may well be the case, and the historical tendency to issue preliminary injunctions readily in copyright cases may reflect just that." In other words, Salinger may well be able to prove irreparable harm, after all.

In the meantime, the Second Circuit rules that "there is no reason to disturb the District Court’s conclusion as to the factor it did consider — namely, that Salinger is likely to succeed on the merits of his copyright infringement claim." For you non-lawyers, this means that Salinger has a great case on the merits of his copyright case in that "60 Years Later" is substantially similar to "The Catcher in the Rye." The newer book is essentially a sequel to the Salinger classic. Indeed, the Second Circuit says that any argument to the contrary is "manifestly meritless."

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