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.

Stale Rye: 'Catcher' Sequel Not Coming Through

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"60 Years Later: Coming Through the Rye," will not be published, advertised or otherwise distributed in the U.S. during the pendency of J.D. Salinger's copyright infringement lawsuit against its Swedish author, Fredrik Colting.

U.S. District Court for the Southern District of New York Judge Deborah A. Batts yesterday granted the preliminary injunction against publication sought by the reclusive 90-year-old Salinger in the case of J.D. Salinger, individually and as Trustee of the J.D. Salinger Literary Trust v. Fredrik Colting, writing as John David California, WindupBird Publishing, Ltd., Nicotext A.B. and ABP, Inc. d/b/a SCB Distributors, Inc. (No. 1:09cv05095). Judge Batts confirmed her findings in extending the temporary restraining order that she instituted on June 17 that Salinger holds a valid copyright in his 1951 classic "The Catcher in the Rye," whose sales have topped 35 million worldwide, and that the novel's alienated teen protagonist, Holden Caulfield is sufficiently delineated so that a claim of infringement has merit. (See "TUOL" posts 6/3/09, 6/18/09).

The defendants' arguments that "60 Years" was a literary critique or parody of "Catcher" that was transformative of the original and shielded by the Fair Use exception to the Copyright laws did not hold sway with Judge Batts, who found that Colting's effort borrowed wholesale "substantively and stylistically" from Salinger's work. "To the extent defendants contend that '60 Years' and the character of Mr. C direct parodic comment or criticism at Catcher or Holden Caulfield, as opposed to Salinger himself, the Court finds such contentions to be post-hoc rationalizations employed through vague generalizations about the alleged naivete of the original, rather than reasonably perceived parody," Judge Batts wrote in her 37-page decision.

The 227-page "60 Years,"which already has been published in England, features a 76-year-old character named Mr. C who escapes from a retirement facility in upstate New York and encounters, among other characters, an individual named Salinger. Defendants may immediately appeal Judge Batts' ruling to the U.S. Circuit Court of Appeals for the Second Circuit.

At least for the time being, as Holden Caulfield would put it, Judge Batts' decision is a "crummy" "lousy" one for the defendants.