2nd Circuit Finds a 'Catch' in Injunction Against Salinger Sequel

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"60 Years Later: Coming Through the Rye," which draws characters from the late J.D. Salinger's classic "Catcher in the Rye,"  (see "TUOL" post 7/24/09), may yet line the shelves of U.S. bookstores following a ruling April 30 by the U.S. Circuit Court of Appeals for the Second Circuit.

In  Colleen M. Salinger & Matthew R. Salinger, Trustees of the J.D. Salinger Literary Trust v. Fredrik Colting, writing under the name John David California, Windupbird Publishing Ltd., Nicotext A.B. & ABP, Inc. d/b/a SCB Distributors, Inc. (Case No. 09-2878cv), the appellate court vacated a preliminary injunction against "60 Years" on copyright infringement grounds and remanded the case to the U.S. District Court for the Southern District of New York to review the injunction standard following the U.S. Supreme Court decision in eBay, Inc. v. MercExchange, LLC, 547 U.S. 388 (2006).

U.S. District Court Judge Deborah A. Batts enjoined the publication of Colting's tome, finding it derivative and substantially similar to Salinger's revered novel about Holden Caulfield's coming of age. In other words, Judge Batts determined Salinger was likely to prevail on the merits of his copyright infringement suit, and would be substantially harmed by the sale of "60 Years" in the U.S.

In light of the eBay decision and the recent case of Winter v. Natural Resources Defense Counsel, 129 S. Ct. 365 (2008), the Second Circuit held that the U.S. District Court for the Southern District of New York must revise its standard test for determining whether to grant preliminary injunctions in copyright cases. Going forward, a plaintiff seeking a court order enjoining publication in a copyright case must still show a likelihood of prevailing on the merits or "sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in [the plaintiff's] favor." More to the point, the plaintiff must demonstrate it will suffer harm if the injunction does not enter, and the court may not presume irreparable harm by following some general rule.