Holding Caulfield

I could have linked to a million stories on this, but Publishers Weekly seems appropriate*:

I did too read the book.

I did too read the book.


Finding that author J.D. Salinger is “likely to succeed on the merits of its copyright case,” a federal judge granted a preliminary injunction late on Wednesday afternoon, barring the publication of what Salinger’s attorneys called an unauthorized sequel to The Catcher in the Rye. In her decision, Judge Deborah Batts ruled that Fredrik Colting’s 60 Years Later would harm the market for “sequels and other derivative works” from Salinger and barred publication of Colting’s book in the United States.  Colting told PW he was “pretty shocked” by the ruling and vowed to appeal.  Despite the ruling in New York, the book will be on sale in Europe, Colting added, sometime next week.

The ruling came as little surprise to court-watchers, who noted Batts’s obvious skepticism during oral arguments presented by Colting’s lawyers, who contended that the work should be protected as parody under fair use. “While the court does find some limited transformative character in 60 Years Later,” the order read, “it finds that the alleged parodic content is not reasonably perceivable, and the limited non-parodic transformative content is unlikely to overcome the obvious commercial nature of the work.”  Salinger’s attorneys had no comment.

Opinion is here.

I’ve already weighed in on the fundamental proposition at stake.  Needless to say, beyond this the concept of an injunction barring the book’s publication, on top of this, er,  novel holding by Judge Batts, is about as chilling a breeze as I can feel on a muggy July day in Manhattan.

Here’s a roundup of other opinions:

The WSJ Law Blog spoke to Colting, who said, “I am pretty blown away by the judge’s decision.  Call me an ignorant Swede, but the last thing I thought possible in the U.S. was that you banned books.”  (Is “you ignorant Swede!” one of those common epithets that had been whizzing right past me all this time?)

Plagiarism Today focuses, in its brief coverage, on Colting’s claim that “his work was intended to be a parody and expressed disbelief at the ‘banning’ of his book.”  Well, Judge Batts expressed disbelief too — particularly at his “parody” claim, which is probably pretty credible disbelief, to, um, tell you the truth.

John Bennett, from the other side of the issue at Against Monopoly, writes trenchantly as follows:

When you read this story, it is hard not to throw up your hands in total disgust at the court and copyright law link here. . . .  Here we are threading needles and splitting hairs as the judge doesn’t seem to have thought about whether there is a real problem, trying instead to decide if the parody is successful or adds anything to the character portrayal. . . .  Here is a case where letting the market decide the book’s fate would have been a great idea. Instead, the suit will be appealed.

Man, he makes that sound like a bad thing!

I found an anonymous, and new, blog called iP Stump, which noted that the parody defense probably cost the Ignorant Swede his case, and while Stump seemed to applaud the ruling as “a victory for individual intellectual property protection,” he or she added,

The only thing that seems alarming to me is that the premise, story-line, and virtually every other aspect of the parody seems innovative and novel. While it is understandable that Salinger wants to protect his generation-defining work, it is upsetting to know that this case may well prohibit any future adaptation or even tribute to one of the greatest characters in literature.

My old friend Joe Windish is a little less impressed by Salinger’s iconic icon, writing at my old friend Joe Gandelman’s The Moderate Voice:

The economics of the situation would have worked in Salinger’s favor; “60 Years Later” would have spurred sales of Salinger’s Catcher in the Rye.

I was never under Caufield’s spell. In that I’m more in sync with today’s youth:

Teachers say young readers just don’t like Holden as much as they used to. What once seemed like courageous truth-telling now strikes many of them as “weird,” “whiny” and “immature.”

Judge Batts issued her opinion right on the eve of a vacation, so that may be why so far there’s no word from the brilliant Rich Stim (why aren’t I reading his blog every day?), Lessig (who doesn’t seem to blog once school’s out), my chum Victoria Pynchon (even she could not have mediated this one), or any of the crew at Copyfight (who really should be all over this, people!).

And don’t get me started about Bill Patry, who is mainly sick of sharing his expertise for free and getting aggravation back for his efforts.  But you never know.

Either way, this headed for the Second Circuit and, because of the very legitimate book-banning concerns expressed by that silly Swede, it may get there rather fast.

UPDATE:  The Media Law Prof Blog reports that the American Library Association has joined in the appeal, and “here’s a link to the brief for Mr. Colting.”

*Corrected from original posting.  See comments.

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Author:Ron Coleman

I write this blog.

6 Responses to “Holding Caulfield”

  1. John L. Welch
    July 3, 2009 at 4:18 am #

    The quotation from Publisher’s Weekly seems to concern the temporary restraining order, not the preliminary injunction decision. Judge Batts did rule on the fair use defense and rejected it in granting the preliminary injunction.

  2. July 3, 2009 at 7:05 am #

    Quite right, John. I had a bet with Salinger over whether anyone was reading IP blogs last night, on the eve of the three-day Independence Day vacation. He said you would be, and I said, no, Welch is already chilling.

    Salinger wins again.

    I’ve fixed the quote now, of course!

  3. John L. Welch
    July 3, 2009 at 1:06 pm #

    When two drunks are arguing outside your window at 4 in the morning, you get up and check the blogs.

    JLW

  4. July 3, 2009 at 7:59 pm #

    Thanks for the link, Ron. In comments at TMV, dr e. tells me that the Swedish author self-published the book and made no money in Sweden. It hasn’t sold well in the UK either. So what read to me like a potentially interesting book may be a big fat flop here in the U.S. If…

    dr. e also goes on to say that the author trumpeted in his press kit that it was a “sequel to Catcher in the Rye.” He apparently caught on to the parody language late in the game.

    I was watching for reaction from Lessig and the folks at Copyfight, too. Your links in this post have given me new sources to watch in future.

    Happy 4th!

  5. MarcW
    July 4, 2009 at 8:58 am #

    I’m not familiar enough with the case yet to comment on the merits, but I will address one argument you quoted that I see a lot:

    “…the economics favor Salinger… it will renew interest in his work…”

    I hear that SO OFTEN. “It’ll be good publicity,” “You’ll get other work from it,” “Think of the exposure.” It’s particularly common in photography, which is one of my areas of interest.

    I am reasonably familiar with the Copyright Clause and the Copyright Act, and neither of them says that authors should have control over their works unless somebody else thinks that it would be economically advantageous to them for it to be infringed. Quite aside from the often absolutely ludicrous nature of this argument (see the really scalding comments Harlan Ellison makes in his famous YouTube interview on the subject) it’s totally irrelevant to the central idea of copyright. Authors have control over their works. It might make me a lot of money if somebody used one of my photographs to promote a political party or commercial product, but if I do not like the political party’s platform or the commercial product in question, it is totally irrelevant that they are willing to pay me a million dollars for it.

    Similarly, Salinger might have no other reason to reject the work in question than that he doesn’t like it and doesn’t want to be be associated with it. His motives are irrelevant. Either the work is a parody or other Fair Use, or it’s not. If it is, Salinger can go pound sand, even if it actively causes him economic harm, let alone if it benefits him. But if it’s not, Salinger can put the kibosh on it and that’s the end of the story. Wistful and patronizing expressions about what a fool he’s being are merely subtle ad hominem attacks with no legal bearing.

    Sorry. End rant.

  6. July 7, 2009 at 3:50 am #

    It does not matter if it is a “temporary restraining order” or a “preliminary injunction” – BOTH are unconstitutional prior restraints.

    Judge Batts has made a blatantly unconstitutional decision and should be reprimanded for it. Even if she predicts that the plaintiff will succeed in the copyright case, you can’t enjoin speech until there is a formal trial on the merits.

    Are we now supposed to assume that its unconstitutional to issue a prior restraint of documents involving national security (i.e., The Pentagon Papers), but its perfectly fine to issue a prior restraint in order to protect the profits of media companies?

    Recommended reading in this instance:

    NY Times v. U.S.
    http://www.journalism.wisc.edu/~drechsel/j559/readings/PentagonPapers.html

    FREEDOM OF SPEECH AND INJUNCTIONS IN INTELLECTUAL PROPERTY CASES

    http://www.law.ucla.edu/volokh/copyinj.htm

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