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J.D. Salinger and 60 Years Later: The Struggle between Copyright and the First Amendment

Kim D. Gainer, Radford University

Overview

J.D. Salinger died in January of 2010, but an intellectual property dispute centering on The Catcher in the Rye continues to wend its way through the federal court system. An unauthorized ‘sequel’ had been published in the United Kingdom in May of 2009 and was in the verge of being released in the United States when Salinger’s lawyers filed suit to stop its sale. A permanent injunction blocking publication in the United States was granted by the U.S. District Court for the Southern District of New York, but the author and publisher of the novel filed an appeal to the Second Circuit Court of Appeals. This appeal was supported in an amicus brief by four major news organizations: The New York Times, The Associated Press, the Gannett Company, and the Tribune Company. Oral arguments in the case were heard in September of 2009, but a decision has not yet been handed down.

Background

Mr. Salinger’s interest in defending his intellectual property rights is well known and may in the past have discouraged what would arguably be fair use of his writings. An illustrative example is found at a web site largely targeted at secondary-level teachers of English. The owner of this website, a Catcher-enthusiast, has restricted his use of quotations from the novel for fear of legal repercussions. Describing a section of the site devoted to “intrinsic aspects” of The Catcher in the Rye, the owner writes,

This includes material basically concerning aspects of the novel itself—what scholars might call internal or intrinsic approach/criticism. Since everybody knows that Mr Salinger is not exactly keen on having people quote from CR, this section suffers from a certain handicap—there are so many things I would like to quote....
(Wahlbrinck)

This same site maintains a list of Salinger-related links. Of interest is the description of this one: “The Holden Server a CR site which explains why it does not exist any more [sic] (i.e. for legal reasons)—yet definitely worth visiting.” (This link is in fact broken, as is the link to the site described as follows:  “Salinger and copyright problems  Recommended  bananafish/Salinger.org subpage for anyone interested in Salinger's insistence on his copyright in connexion [sic] with the internet.”)

The characterization of Salinger as a defender of his copyright prerogatives is something that he himself does not dispute, as he is described in his own court filings as “fiercely protective of his intellectual property” and as someone who “has never allowed any derivative works to be made using either The Catcher in the Rye or his Holden Caulfield character” (Complaint against ABP, Inc, John Doe, Windupbird Publishing Ltd, Nicotext A.B., 2; see also pp. 10-11)

The Current Case

Given the reclusive author’s reputation for maintaining tight control over the use of his writing, it is not surprising that Salinger should file suit to stop the publication of a book whose cover described it as a “sequel to one of our most beloved classics” (Complaint against ABP, 2). Written under the pseudonym J.D. California, the novel under dispute is entitled 60 Years Later: Coming through the Rye. As the title suggests, the book’s protagonist, Mr. C, is a septuagenarian.  He has fled from his nursing home, and a portion of the book is devoted to his experiences and thoughts as he wanders through New York City. The book also shows him confronting the character of J.D. Salinger, who continually attempts to kill off his creation in various fashions. The complaint asks that distribution of this novel in the U.S. be enjoined, arguing that this is an “unauthorized sequel” that “infringes Salinger’s copyright rights in both his novel and the character Holden Caulfield, who is the narrator and essence of that novel” (Complaint against ABP, 1). According to the brief,

The right to create a sequel to The Catcher in the Rye or to use the character of Holden Caulfield in any other work belongs to Salinger and Salinger alone, and he has decidedly chosen not to exercise that right.
(Complaint against ABP, 1)

Much of the brief is devoted to supporting the claim that the 60 Years Later is indeed a sequel and rejecting the notion that it is a parody. The brief points out that, in addition to the use of the word ‘sequel’ on the front jacket, the back cover featured this blurb: “Sixty years after his debut as the great American antihero, Mr. C is yanked back onto the page without a goddamn clue why” (Complaint against ABP, 13). The filing also adduces numerous parallels in language and incident.

The Defendants Respond

The author, now revealed as Fredrik Colting, co-owner of a small press, responded to the complaint by arguing that he wrote 60 Years Later “as a critical exploration of such themes as the relationship between J.D. Salinger, the famously reclusive author, and Holden Caulfield, his brash and ageless fictional creation” (Declaration of Fredrik Colting, 2). The character of Holden Caulfield, Colting stated, transcends the pages of the original book, and Salinger, like the character Colting bases on him, “has created a character that has become so culturally resonant that [Salinger] has lost control of him and cannot kill him off” (Declaration of Fredrik Colting, 3). Acknowledging that an early book cover and promotional materials refer to his novel as a ‘sequel’, Colting now characterizes “this description [a]s inaccurate” and reports that the U.S. edition will be free of such language (Declaration of Fredrik Colting, 8). His book, he writes,

is not designed to satisfy any interest the public might have in learning what happened next to Holden Caulfield or the other characters in Salinger’s book. Rather, it is intended to stand on its own as a critical examination of the character Holden Caulfield, the relationship between author and his creation, and the life of a particular author as he grows old but seems imprisoned by the literary character he created.
(Declaration of Fredrik Colting, 8)

In support of his claim that the book is not a sequel, Colting asserts that he neither copied nor appropriated the language of the book, beyond the use of certain catchphrases necessary to characterize Mr. C; that, beside the main character, only three characters from The Catcher in the Rye reappear in 60 Years Later; that the characters that do appear are reintroduced in order to further the critical exploration that is his stated goal; that he has created numerous characters independent of those created by Salinger; and that, “[e]ven more importantly, [his] book includes J.D. Salinger himself as the narrator/puppet master of the Mr. C character” (Declaration of Fredrik Colting, 10). As one reads 60 Years Later, he argues,

it becomes more and more clear that it is Salinger who is the most important character. His narrative starts and stops as he tries different ways to move the story forward. He even makes characters appear and disappear in front of Mr. C as the book progresses.
(Declaration of Fredrik Colting, 10).

In short, Mr. Colting is arguing that his is a transformative work, one that makes use of only that which is required for him to explore a premise that in large part centers upon Salinger himself. In additional filings this argument is explicitly supported by Robert Spoo, who had been asked to assist Colting’s attorneys in assessing the extent to which 60 Years Later had made “creative and transformative” use of The Catcher in the Rye (Declaration of Robert Spoo, 1) and by Martha Woodmansee, who describes 60 Years Later as a work of “meta-commentary” that

pursues critical reflection on J.D. Salinger and his masterpiece CR just as do the articles that literary scholars conventionally write and publish in literary journals, but[…]casts its commentary in an innovative “post-modern” form, specifically, that of a novel.
(Declaration of Martha Woodmansee, 3)

The Ruling of the Second District Court

In June of 2009 the Court issued a temporary restraining order to prevent the U.S. distribution of 60 Years Later, which was followed in July by the issuance of a preliminary injunction. Central to the ruling was Judge Deborah Batts’ examination of the question of whether 60 Years Later could be considered a parody or critique and therefore protected as fair use of material from Salinger’s copyrighted novel. With regard to Mr. Colting’s depiction of the septuagenarian version of Holden Caulfield, Judge Batts concluded that for most aspects of the character 60 Years Later was simply “rehashing one of the critical extant themes of Catcher” (Memorandum & Order, 16). In reaching the conclusion that in that regard 60 Years Later was neither parody nor a commentary, Judge Batts relied not only on the text of the novel but also the wording on the novel’s jacket and public statements by the Mr. Colting describing 60 Years Later as a tribute and a sequel. It was only after the suit was filed, the Judge pointed out, that Mr. Colting and his lawyers adopted the argument that the novel was commentary upon The Catcher in the Rye, and she dismisses their claims as “post hoc rationalizations employed through vague generalizations about the alleged naivete of the original” (Memorandum & Order, 11; see pp. 16-17, n. 2). As for the claim that the novel is transformative via its use of the character of Salinger, Judge Batts acknowledged that this was a “novel” element but stated that it “is at most, a tool with which to criticize and comment upon the author, J.D. Salinger, and his supposed idiosyncracies” (Memorandum & Order, 19). For Judge Batts, the gold standard for determining that a text is a parody that satisfies the standards for fair use is that the commentary or critique be focused on the original work itself.

Appeal to the Second Circuit

Judge Batts’ decision was immediately appealed to the Second Circuit Court of Appeals, and an amicus brief was filed on behalf of Mr. Colting by, collectively, the American Library Association, the Association of Research Libraries, the Association of College and Research Libraries, The Organization for Transformative Works and the Right to Write Fund (Falzone).  In addition, an amicus brief was filed by four major news organizations: The New York Times, the Gannett Company, the Tribune Company, and The Associated Press. At first glance the involvement of the Associated Press in the filing of the amicus brief may seem ironic, given that organization’s determined efforts to control the use of its own intellectual property, efforts that in 2008 led to a controversy in the blogosphere when the organization tried to enforce a policy that would have required the purchase of licenses for quotations of as few as five words (Doctorow). In fact, in the brief the Associated Press and its fellows are at pains to emphasize the importance they place upon the protection of copyright. They are in the business of publishing copyrighted material and depend upon copyright law to protect their interests, especially in these days when “digital technologies make it ever easier for third parties to seize and repurpose the fruits of their costly newsgathering efforts” (Brief for Amicus Curiae The New York Times Company, et al., 4). However, a second concern common to news organizations trumps other issues in the case and causes them to make common ground with the author of 60 Years Later. That would be the issue of prior restraint, the practice of banning publication rather than seeking remedies after publication. This the brief describes as “the most offensive and least tolerable prohibition on speech” (Brief for Amicus Curiae, 5). The brief documents numerous instances of the courts coming down on the side of authors and publishers in opposition to prior restraint and argues that “[t]he Supreme Court’s consistent rejection of prior restraint reflects the ‘chief purpose’ of the Constitution’s  free-speech clause: ‘to prevent previous restraints upon publication’” (Brief for Amicus Curiae, 7). The brief uses the fact that the courts have not countenanced prior restraint in the face of libel or defamation or even, in the case of the Pentagon Papers, in the face of claims of national security, in order to argue that the injunction on the publication of 60 Years Later is inappropriate:

[…]in this case, where the only harm appears to be to the pride of a reclusive author in not having his desires fulfilled barring commentary about his iconic book and character, without any actual financial harm, the lower court saw fit to ban publication of a new boo. Such a result defies common sense, and is not—and cannot be—the law.
(Brief for Amicus Curiae, 1-2).

In the view of The Associated Press and its companion news organizations, the prior restraint visited upon 60 Years Later represented a radical remedy of last resort not justified by the facts of the case. The novel was arguably transformative, and it was premature to apply prior restraint at the stage of a preliminary injunction. There was, the brief argued, no evidence that publication of the novel would cause irreparable injury to the plaintiff. Moreover, should the novel be published and later be found to have infringed upon Salinger’s copyright, there were other steps that the copyright holder could pursue, such as suing for monetary damages, that would not raise First Amendment issues. This line of reasoning, the brief argues, was neglected by the district court, which, “[d]espite the dangers inherent in prior restraint[…]completely subordinates free speech interests and simply presumed the new publication would cause irreparable harm” (Brief for Amicus Curiae, 31).

According to reports of the oral arguments before the court of appeals, the justices repeatedly asked whether the district court had thoroughly examined the issue of fair use before it blocked the publication of the novel (Shanahan). The justices seemed at least willing to entertain the notion that the nature of the novel should be more thoroughly explored before an indefinite ban is placed upon its distribution in the U.S.

Works Cited

Brief for Amicus Curiae The New York Times Company, The Associated Press, Gannett Co., Inc. and Tribune Company on behalf of Defendants-Appellants. Downloaded from Anthony Falzone, “Confusion over Copyright Injunctions and Other Restraints of Speech.” The Center for Internet and Society 3 August 2009. Web. 28 Feb. 2008.

Complaint against ABP, Inc, John Doe, Windupbird Publishing Ltd, Nicotext A.B. Salinger et al v. John Doe et al. Federal District Court Filings and Dockets. 1 June 2009. Web. 28 Feb. 2010.

Declaration of Fredrik Colting. Salinger et al v. John Doe et al. Federal District Court Filings and Dockets. 15 June 2009. Web. 28 Feb. 2010.

Declaration of Martha Woodmansee Salinger et al v. John Doe et al. Federal District Court Filings and Dockets. 15 June 2009. Web. 28 Feb. 2010.

Declaration of Robert Spoo Salinger et al v. John Doe et al. Federal District Court Filings and Dockets. 15 June 2009. Web. 28 Feb. 2010.

Doctorow, Cory. “Associated Press Expects You to Pay to License Five-Word Quotations (and Reserves the Right to Terminate Your License).” BoingBoing 17 June 2008. Web. 28 Feb. 2010.

Falzone, Anthony. “Confusion over Copyright Injunctions and Other Restraints of Speech.” The Center for Internet and Society 3 August 2009. Web. 28 Feb. 2008.

Memorandum & Order. Salinger et al v. John Doe et al. Federal District Court Filings and Dockets. 2 July 2009. Web. 28 Feb. 2010.

Shanahan, Ed. “Second Circuit Panel Wonders Whether Judge Acted Hastily in Barring Book Based on 'Catcher in the Rye'.” IP Law & Business. 3 Sept. 2009. Web. 28 Feb. 2008.

Wahlbrinck, Bernd. “The Catcher in the Rye by J.D. Salinger and Related Matters.” Teaching English: Worksheets Tests & More. 1999-2010. Web. 28 Feb. 2010.

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