Legal News

Will Holden Live On? Author of Banned Book Appeals Ruling

By Ashby Jones

On Thursday, lawyers for Fredrick Colting, who wrote a sort-of follow-up book to J.D. Salinger’s seminal work “The Catcher in the Rye,” appealed a decision from earlier this month banning the publication of his book, “60 Years Later: Coming Through the Rye.” The judge on the case, Manhattan federal judge Deborah Batts, found that the book impermissibly infringed on Salinger’s copyright. Click here for that opinion; here for previous LB coverage of the case.

Understanding Colting’s appeal requires a brief explication of Batts’s ruling. She ruled that the novel, penned by Colting, an American living in Sweden under the pseudonym “J.D. California” (the logic of which is not immediately clear to us) did not fit into the fair use exception in copyright law. Specifically, Batts ruled that the because the book did not constitute a critical parody that “transformed” the original. The book imagines a grown up Holden Caulfield, the protagonist of the original, wandering the streets of New York after having escaped from a retirement home.

Not surprisingly, then, Colting’s appeal to the Second Circuit (click here to read it), focuses to a large degree on this “transformation” idea, largely by highlighting the degree to which it allegedly comments on Salinger’s relationship to the novel and the Holden Caulfield character itself.

From the brief:

60YL is a highly transformative work of commentary and criticism about CITR that explores the relationship between Salinger and Holden Caulfield, his most famous character. 60YL is not a continuation or retelling of CITR, nor could it possibly satisfy the public interest in what happened to Holden or any of Salinger's other characters. Rather, 60YL examines the widely-held impression of Holden as a free and independent hero, juxtaposed against the idea that Salinger is an author imprisoned by writer's block and fear of failure. 60YL creates an imaginary world where Salinger brings his character back to life so that he may kill him and finally be free of the burden his character's fame has caused. Salinger and his creation meet face-to-face, and Salinger ultimately realizes that he cannot destroy what has become his own flesh-and-blood and allows his character to go free.

. . .

Later, the brief reads:

Martha Woodmansee, Professor of English and Law at Case Western Reserve University, opines that 60YL is "a work of metacommentary . . . . [that] pursues critical reflection on J.D. Salinger and his masterpiece [CITR] just as do the articles that literary scholars conventionally write and publish in scholarly journals, but it casts its commentary in an innovative 'post-modern' form, specifically, that of a novel.” . . .

Robert Spoo, a tenured professor at the University of Tulsa, concluded that 60YL is a "sustained commentary on and critique of CITR, revisiting and analyzing the attitudes and assumptions of the teenaged Holden Caulfield. In this respect, 60YL is similar to a work of literary criticism."

We haven’t read Colting’s book, so we’re not in the place to judge whether or not we agree with the brief, but we can say it’s pretty clear that Colting’s lawyers understand that the case will likely turn on this “transformative” issue. They hit it hard; much harder than earlier attempts. “We thought it was really important to give a more detailed explanation on this point in this brief,” said Edward Rosenthal of Frankfurt Kurnit Klein & Selz PC in New York. “We briefed it at the district court level, but we were under time pressure. We give it more thorough attention here.”

The lawyer for Salinger, Davis Wright Tremaine’s Marcia Paul, did not immediately return a request for comment. Salinger’s reply brief is due in a couple weeks.

We’d expect a lively Second Circuit hearing, likely to take place later this summer or fall.

Full post as published by Law Blog - WSJ.com on July 24, 2009 (boomark / email).