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June 17, 2009 6:54 PM

Judge Shelves Catcher in the Rye-Based Book...For Now

Posted by Ed Shanahan

First, let's dispense with the obvious: J.D. Salinger was not in court Wednesday as his lawyers from Davis Wright Tremaine, led by Marcia Paul, sought to block U.S. publication of an unauthorized new book based on his iconic 1951 novel The Catcher in the Rye. (Though, according to courtroom buzz, Salinger's status as a legendary recluse apparently did not keep some news photographers from briefly gathering outside in hopes of getting a glimpse of the man.)

Had he been there, the 90-year-old novelist most likely would have left U.S. District Court Judge Deborah Batts's courtroom with mixed emotions.

Picture 1 On one hand, Batts issued a temporary restraining order halting U.S. publication of 60 Years Later: Coming Through the Rye, written by Swedish author Fredrik Colting under the pseudonym John David (J.D.) California. Batts has ten days to decide whether to schedule a trial or to enjoin publication of the book, which was to be released in this country in September.

The judge issued her order following an hour-long hearing during which she quickly made two rulings in Salinger's favor. In the first, Batts (who said she'd read or, in the case of Catcher, re-read, both books prior to the hearing) found that Salinger’s most famous character, Holden Caulfield, is "sufficiently defined and delineated" to be entitled to copyright protection. It's the first time a judge in the Second Circuit has extended such protection to a single character from a single literary work ("a portrait by words," in the judge's elegant phrasing).

Further boosting Salinger's case, Batts found "substantial similarities" between the author's classic tale of adolescent angst and 60 Years Later, which features as its main character a 76-year-old man named Mr. C. Colting’s lawyer, Edward Rosenthal of Frankfurt Kurnit Klein & Selz, acknowledged that the character is a septuagenarian version of the most famous boarding school refugee in American literary history.

What Salinger and his lawyers may not be happy about--reached later in the day, Paul declined to comment, and Salinger, well…--is Batts's decision to reserve judgment on what she called serious fair use questions raised by Rosenthal.

That decision came as a bit of a surprise to some observers given the judge's demeanor and the tenor of her comments in response to Rosenthal’s argument that 60 Years Later is covered by fair use provisions because it is a parody and a work of commentary and criticism. (The argument is outlined in a declaration filed by Colting with the court on Monday.) (Download Colting's declaration.)

Rosenthal said his client's book is emphatically not a sequel, but a kind of meta-analysis of the relationship between the author, the Caulfield character, the book, and the reader. (Should it be published in this country, Rosenthal noted, the book will carry the subtitle "An Unauthorized Fictional Examination of the Relationship Between J.D. Salinger and his Most Famous Character.")

"It makes you view The Catcher in the Rye differently," he said.

Batts appeared unmoved by Rosenthal's arguments. "Let me be clear," she said at one point. "I am having difficulty seeing it."

For her part, Paul rejected Rosenthal's attempt to shed the "sequel" tag.

"It's a sequel, plain and simple," she said, echoing the allegation in Salinger's complaint that 60 Years Later is a "rip-off, pure and simple." (Download Catcher complaint.)

Paul also dismissed Rosenthal's claim that Colting's book is "transformative," another allowable fair use under copyright law. She said the only transformative element was the injection of Salinger himself as a character in the new book. (In what is apparently one of 60 Years Later’s primary conceits, the Salinger character repeatedly tries to kill off Mr. C., presumably because he has become a kind of albatross to the author. Spoiler alert: the fictional Salinger never succeeds.)

In the end, Paul said, Salinger alone is the one with the legal authority to do, or not do, what he wants with the character he created.

"This is a case about the right not to publish," Paul said. "This is a case about the right to keep Holden Caulfield frozen in time for the life of Mr. Salinger's copyright."

After the hearing ended, Rosenthal appeared pleased with the result. "The fact that she's thinking about these complicated matters is a victory for us."

Whatever Batts ultimately decides, the case appears almost certainly headed for the Court of Appeals. Tip to the photographers: Don't expect Salinger to show up there either.




    
    
   
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