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April 30, 2010 3:01 PM

A (Small) Victory for "Catcher" Sequel?

Posted by Zach Lowe

6a00e55044cbaf883401157032b328970c-150wi The author of a purported sequel to J.D. Salinger's legendary novel "The Catcher in the Rye" won a small victory today when the U.S. Court of Appeals for the Second Circuit lifted a preliminary injunction that barred the sequel from being published, court records show. The ruling also appears to change the criteria for granting preliminary injunctions in copyright cases in a way that makes it harder for intellectual property owners to win such injunctions, according to experts we spoke with today.

You won't get to the book, entitled "60 Years Later: Coming Through the Rye," right away, because the panel kept the injunction in place for ten days to allow Salinger's legal team (led by Davis Wright Tremaine's Marcia Paul) to apply for a temporary injunction. As we've reported before, a federal district judge ruled in June that the sequel, authored by Fredrik Colting, infringes on Salinger's copyright and does not qualify as a fair use of the original "Catcher." Colting has claimed the book is not intended to be a sequel, but rather a parody that transforms the original work. Judge Deborah Batts disagreed and issued the injunction. (For those interested: The plot centers on a 76-year-old Holden, known in the book as "Mr. C.," escaping from a retirement home to explore New York City, as Salinger, in some sort of parallel world, tries to hunt Holden down and kill him.)

The Second Circuit panel that ruled agrees with Batts that Colting's work probably constitutes infringement, court records show. They note, for instance, that Colting has referred to his book as a "sequel" in promotional comments.

Rather, the panel ruled that Judge Batts did not use the right test to determine whether to grant Salinger's request for a preliminary injunction. The panel said Batts should have used a four-pronged test the U.S. Supreme Court outlined in the 2006 case eBay v. MercExchange, a case that had to do with patents, not copyrights. That test essentially says that infringement and a likely finding of irreparable harm to the patent-holder alone are not enough to justify a preliminary injunction; courts also must consider other issues, including the public's interest. 

In its decision today, the Second Circuit extended that test to apply to copyright cases as well as patent cases and ordered the district court to reconsider the injunction under that criteria. That could make it more difficult for IP rights holders to win preliminary injunctions, which in turn could embolden artists to create works that might be vulnerable to an infringement challenge, says Michael Carlinsky, a partner at Quinn Emanuel Urquhart & Sullivan. "Today's ruling will certainly reduce the leverage IP owners hold against would-be infringers," Carlinsky tells us. 

In a statement, Edward Rosenthal of Franklin Kurnit Klein & Selz, the lead lawyer for Colting, said he is "confident that when the district court applies the new analysis required by the appeals court, the book will not be enjoined." In its statement, the firm called the Second Circuit's decision "groundbreaking." Paul released a statement saying the Salinger side is "heartened" that the appeals court found Colting's book to be a likely infringement on Salinger's work. The Salinger team will "vigorously pursue" a permanent injunction at the district court level, the statement said.

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