Legal News

A Closer Look at the J.D. Salinger Lawsuit

By Ashby Jones

J.D. Salinger (pictured) hasn’t published much fiction in the last half-century, but the guy can still crank out a lawsuit when he needs to.

The latest: Salinger, 90, has sued to enjoin the publication of a sequel of sorts to his most famous and celebrated novel, Catcher in the Rye. The sequel, called 60 Years Later: Coming Through the Rye, is written by a purported American living in Sweden named John David California. The novel portrays a 76-year old Holden Caulfield — the famed protagonist of the original work — wandering the streets of New York after having escaped from a retirement home.

Reads the lawsuit: “The Sequel is not a parody and it does not comment upon or criticize the original . . . It is a ripoff pure and simple.”

Reached by the AP, a man identifying himself as California said that he lived outside of Goteborg, Sweden. He called the legal action “a little bit insane.” Said California: “To me, this is a story about an old man. It’s a love story, a story about an author and his character,” adding that John David California was his pen name. “I did not mean to cause him any trouble.”

Dow Jones Newswires’ Chad Bray on Tuesday reached Fredrik Colting, the book’s publisher at Windupbird Publishing Ltd. Colting conceded that his is a small publishing outfit without a lot of resources, but said they plan to respond to the lawsuit. "We believe in the book,” said Colting. “We believe it's a story of its own. We believe it has a right to be here."

Click here for the complaint, filed in Manhattan federal court by lawyers at Davis Wright Tremaine.

So does Salinger’s lawsuit stand a chance? To explore the question, we checked in with Marc Reiner, a copyright lawyer and partner at Dorsey & Whitney in New York.

Hi Marc. Thanks for taking the time. So what are the prevailing issues in the suit?

It looks to me like the plaintiffs will have to prevail on two big issues — the first of which is probably easier to win than the second. The first is whether the character of Holden Caulfield is copyrightable. That issue — whether a fictional character is copyrightable — is a little unsettled. It’s most readily applied to characters that are graphic, like Mickey Mouse, or if the character has been in a series, like Tarzan.

I’d probably lean toward thinking that Holden Caulfield is fleshed out well enough to be copyrightable.

Really?

Well, the character appeared in works aside from Catcher in the Rye and, perhaps most to the point, the parts that appear to be used in 60 Years seem to reflect the parts of Holden Caulfield that are perhaps the most developed.

Okay. So this hurdle the plaintiffs probably pass. What’s next?

The next real issue is whether or not the work constitutes fair use. Fair use is a statutory defense to the copyright law, and while there are a few different ways a work can qualify as a fair use, in this context, the purportedly infringing work probably has to be a parody in order to pass muster.

A parody?

Right. And there’s a difference between a satire and a parody. It’s not okay to remake Catcher and the Rye and use it to make a comment on adolescence or old age or something else. That’s not fair use. Rather, to qualify as a parody, the work has to comment on the original work itself. That’s what the Eleventh Circuit found in regard to the Wind Done Gone — that it was a parody of [Gone with the Wind] in the legal sense, and therefore non-infringing.

But this book describes itself not as a parody, but as a sequel. In my mind, those are two pretty different concepts, right?

Not necessarily. First of all, a parody doesn’t always mean funny, of course. Second, it’s very common for a court to find a parody even when there’s no outright statement of parody.

And you could see how this might work here — how this book could be construed as a parody of Catcher in the Rye. What the author has done here is cast Holden Caulfield as a cranky old man. That could be seen as a parodic view of Holden Caulfield as originally portrayed, much in the same way that a Saturday Night Live sketch involving a bunch of old and beaten down super heroes would likely be considered a parody of the underlying works.

Okay, so how do we determine whether this qualifies as a parody?

Courts look to a four factor statutory test. The main factor, the first one, examines whether and to what degree the allegedly parodic work “transforms” the original. The more “transformative” a work is, the more it’s likely to get protection.

In this instance, we really don’t know how transformative the book is since it hasn’t come out yet and the public hasn’t had a chance to read it. We know there are similarities — at least judging from the complaint. But we know there’s some transformation too. Here we have Holden Caulfield as an older man in the twilight of his years.

Okay. And the other factors?

Well, I should say that here that while there are other factors, once a court has found that a work is transformative, it’s typically unlikely to deem it infringing.

That said, the second factor is whether the nature of the copyrighted work is truly artistic. The third is the amount copied. Here, I get the sense that while there were some similar aspects, they probably didn’t borrow too much. The fourth factor is the degree to which the applicable market is affected.

But the bottom line is that it’s probably going to turn on the “transformative question.” And on this point, while I think Salinger seems to have a reasonable case, courts do tend to find on the side of defendants on these claims.

There’s a third cause of action, right? Unfair competition?

Right. And here I think the Salinger camp might have a good leg to stand on. The book allegedly claims to be a sequel, a word that typically implies that the work is authorized by the creator of the original work, which it was not here.

Good stuff. Thanks for taking the time.

The pleasure was mine.

Full post as published by Law Blog - WSJ.com on June 02, 2009 (boomark / email).