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U.S. District Court Judge for the Southern District of New York Deborah A. Batts has issued a 10-day temporary restraining order preventing publication in the U.S. of the work while she weighs the copyright infringement claim put forth by the 90-year-old reclusive Salinger in J.D. Salinger, Trustee of the J.D. Salinger Literary Trust v. John Doe writing as John David California, Windup Bird Publishing, Ltd., Nicotext, A.B., and APB, Inc. d/b/a SCB Distributors, Inc. (1:09-cv-05095) [See my "TUOL" posting 6/3/09.]. Based on Judge Batts' remarks yesterday during a hearing on the injunction, it doesn't appear as if book clubs are going to be discussing the "sequel" anytime soon.
Salinger's attorneys' argument that "60 Years" is too derivative and that Catcher's characters are copyright-shielded seemed to find a sympathetic ear in the federal judge. Attorneys for the Swedish author Fredrik Colting, who adopted the John David California nom de plume in writing the tale that includes among its characters Salinger himself and a 76-year-old "Mr. C," Salinger's protagonist Holden Caulfield portrayed as an upstate NY retirement home escapee, sought to defuse the infringement claim by describing "60 Years" as literary criticism because it sparked questions about the nature of Salinger's book, which has been a mainstay for generations of high school English students.
Judge Batts noted that notwithstanding some original characters, "60 Years" includes several characters besides Caulfield from Salinger's work, including Caulfield's kid sister Phoebe, fellow Pency Prep student Stradlater, and Pency Prep teacher Mr. Spencer, which supports the plaintiff's "substantially similar" works argument. Regarding the defendant's critique assertion to support its fair use exception defense to the copyright claim, Judge Batts said: "I am having difficulty seeing that it[, i.e, literary criticism] exists." Judge Batts further noted that "It would seem that Holden Caulfield is copyrighted."
The 277-page tome by Colting is slated to be published in England this summer and in the U.S. sometime in the fall. Colting didn't help his cause by initially describing his book as a "sequel" to Salinger's novel, which Salinger's attorneys pointed to as evidence that the literary criticism/fair use argument was not being advanced in good faith.
Meanwhile, there is no truth to the rumor that John David California's next novel will be entitled: "I Performed CPR on Jay Gatsby and He's Feeling 'Great' Again."
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There are many authorized sequels, this book isn't one of them. There are many examples of using existing fictional characters as a premise for writing something completely original, this isn't one of them. There are authors who don't zealously protect their work, J.D. Salinger is definitely not one of them. In fact, for the last half-century, he's been famous for two things: not writing and protecting what he has written. The author and publisher knew exactly what they were doing and it isn't literary criticism. It's the sleazy practice known as, "It's easier to ask for forgiveness, then to ask for permission."
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