Holding Caulfield

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

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.

Originally posted 2009-07-02 20:23:02. Republished by Blog Post Promoter