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September 3, 2009 5:23 PM

Second Circuit Judge: Catcher-based Book "Rather Dismal Piece of Work"

Posted by Ed Shanahan

From IP Law & Business

Free speech, copyright infringement, and even a bit of unsolicited literary criticism were on the docket Thursday as the Second Circuit Court of Appeals heard oral arguments about whether a book based on J.D. Salinger's The Catcher in the Rye should be barred from being published in this country.

The three-judge appellate panel peppered lawyers on both sides of the dispute over Fredrik Colting's 60 Years Later: Coming Through the Rye with pointed questions about the nature of the book and whether a district court judge had adequately explored whether it was a fair use under copyright law before indefinitely enjoining its publication in the United States.

One of the judges, Guido Calabresi, elicited loud laughter from the gallery when he offered as an aside that 60 Years Later, whose main character is a 76-year-old version of Catcher's Holden Caulfield, is "a rather dismal piece of work if I may say so." Calabresi indicated that his opinion of the book's literary merits would not figure in his analysis of the legal questions at issue.

Colting published 60 Years Later under the pseudonym John David (J.D.) California in England earlier this year. At the time, it was touted as a sequel to Salinger's classic novel of teen angst, which was published in 1951 and has sold more than 35 million copies.

Upon learning of the book's U.K. release, the reclusive Salinger sued in federal district court in Manhattan for copyright infringement. After ruling that 60 Years Later did indeed infringe Salinger's copyright on both the book and the Caulfield character, district court judge Deborah Batts issued a preliminary injunction blocking its publication and sale in the U.S.

Last month, four of the country's largest news organizations--The New York Times Company, The Associated Press, Gannett Co., Inc., and Tribune Company--filed an amicus brief in the case, arguing that Salinger's infringement claim did not justify blocking the book's publication

Edward Rosenthal, a partner at Frankfurt, Kurnit, Klein & Selz who is representing Colting and SCB Distributors Inc., which would market the book in this country, has argued that, despite its initial billing, 60 Years Later is not a sequel, but rather a "highly transformative" work of literary criticism--a kind of meta-commentary that examines the relationship between Caulfield, Salinger, and readers.

Rosenthal returned to that argument Thursday, saying 60 Years Later contains "enormous amounts of commentary and criticism," and is therefore transformative and deserving of fair use protection. He said Batts had not given his client enough of an opportunity to make that case before issuing the injunction.

As she has throughout, Salinger's lawyer, Marcia Paul of Davis Wright Tremaine, rejected that argument. "I believe it's crystal clear that this book is not transformative under the law."

While the judges reserved decision and gave no clear indication of which way they were leaning, most of their questions zeroed in on the issue of whether Batts should have considered more evidence before issuing the restraining order.

"If this were a direct copy, that would be one thing," Calabresi said. "But if there is an argument that this is a fair use, then we're in a different thing."

Calabresi also asked about the effect of placing a restraining order on a book in the digital age. "What does the fact of the Internet do?" he asked Rosenthal, wondering specifically if 60 Years Later could be considered "banned" if it was available for purchase online. Rosenthal said he did not believe it was that simple to obtain a copy, since Salinger has asked Amazon's U.K. unit not to ship the book into the U.S.

Paul, though, said she understands that the book is indeed being shipped into this country from overseas. Some copies, she said, carry a "Banned in the U.S.A." tag.

"That'll really sell books," said Judge Jose Cabranes to another round of laughter.

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