USDC S.D. New York, July 1, 2009
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- Court grants preliminary injunction barring publication of a novel about the central character from Catcher in the Rye when he is 60 years older; court rejects defendants’ fair use defense, finding that defendants’ work is not transformative and is not a parody of Catcher in the Rye.
Plaintiff J.D. Salinger was granted a preliminary injunction preventing defendant Fredrik Colting, who wrote a novel 60 Years Later: Coming Through the Rye, and the publisher defendants from publishing, advertising, or otherwise distributing Colting’s novel, which Salinger claimed is a derivative work of his novel The Catcher in the Rye.
The court rejected defendants’ argument that 60 Years was protected by the doctrine of fair use. The court applied the four-factor fair use analysis codified in the Copyright Act. The first factor evaluates the purpose and character of the defendants’ use of the copyrighted work. Courts have held that parody is a form of comment or criticism that may have a transformative purpose. However, parody includes only those elements which criticize or comment upon the source author’s works, rather than the author himself. The court held that 60 Years contains no reasonably discernable rejoinder or specific criticism of any character or theme of Catcher.
Defendants also contended that 60 Years is a critique of Salinger and thus, through his close association and relationship to the character of Holden Caulfield, a parody. The court found that defendants’ use of Salinger as a character, in order to criticize his reclusive nature is at most a tool with which to criticize and comment upon the author, J.D. Salinger. It does not, however, direct that criticism toward Catcher and Caulfield himself, and thus is not an example of parody.
While 60 Years may accentuate and comment upon certain aspects of Holden Caulfield’s character, the court found that, because these same characteristics were abundant and perhaps even central to the narrative of Catcher, this aspect of 60 Years does not “add something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” Nor do the mere facts that Holden Caulfield’s character is 60 years older and the novel takes place in the present day make 60 Years transformative.
The court further found that defendants’ use of Salinger as a character, in order to criticize his reclusive nature, has some transformative value, as plaintiff concedes. At most, however, this device utilizes Catcher and the characters of Holden Caulfield and Salinger as tools with which to criticize and comment upon the author, J.D. Salinger, rather than on the work itself. Furthermore, the non-parodic, transformative aspect of Salinger the character is limited. First, the admissions by defendants as to the character and purpose of 60 Years as a sequel to a beloved classic belies any claim that this critique of J.D. Salinger and his behavior was the primary purpose of the novel.
According to the court, 60 Years borrows quite extensively from Catcher, both substantively and stylistically, such that, when combined with the inconsistent use of the transformative element of the character of Salinger, the ratio of the borrowed to the novel elements is quite high, and its transformative character is diminished. Also, defendants did not contest that 60 Years is to be sold for profit, and therefore the commercial nature prong of the first factor weighed against a finding of fair use.
The second factor evaluates the nature of the copyrighted work. The court held that the novel The Catcher in the Rye is a “creative expression for public dissemination that falls within the core of the copyright’s protective purposes.”
The third factor, the amount and substantiality of the portion used in relation to the copyrighted work as a whole, also weighed against defendants. The court believed that Colting took well more from Catcher, in both substance and style, than is necessary for the alleged transformative purpose of criticizing Salinger and his attitudes and behavior. However, for the non-parodic purpose of commenting upon Salinger, rather than his work, it was unnecessary for Colting to use the same protagonist with repeated and extensive detail and allusion to the original work.
Finally, in evaluating the last factor, the effect of the use upon the potential market for the copyrighted work, the court found that this, too, weighed against defendants. The court held that it is quite likely that the publishing of 60 Years and similar widespread works could substantially harm the market for a Catcher sequel or other derivative works, whether through confusion as to which is the true sequel or companion to Catcher, or simply because of reduced novelty or press coverage. Although Salinger has not demonstrated any interest in publishing a sequel or other derivative work of Catcher, it is the potential market for the copyrighted work and its derivatives that must be examined, given that an author “has the right to change his mind” and is “entitled to protect his opportunity to sell his [derivative works].”