August 6, 2009 6:27 PM

A New Chapter in "Catcher" Copyright Fight

Posted by Ed Shanahan

Arguing that a copyright infringement claim--especially one that may be invalid--is no justification for banning a book, four of the country's biggest news organizations on Thursday lined up behind a Swedish author's bid to publish a literary work whose central character is a 76-year-old version of Holden Caulfield.

In an amicus brief filed with the U.S. Court of Appeals for the Second Circuit, lawyers for The New York Times Company, The Associated Press, Gannett Co., Inc., and Tribune Company said their position in support of the publication of Fredrik Colting's 60 Years Later: Coming Through the Rye was not something they took lightly--especially at a time when infringement issues threaten their own business interests.

"Amici publish copyrighted material every day, and depend on the copyright law to protect their writings," the brief states. "Indeed, their need for copyright protection is today more intense than ever as digital technologies make it ever easier for third parties to seize and repurpose the fruits of their costly newsgathering efforts." (Download Salinger v. Colting-News Organizations' Amicus Brief here)

All that notwithstanding, the lawyers argued that they "fiercely believe that the availability of a preliminary injunction under the copyright law cannot trump the prerogatives of the First Amendment, and that a book banning of at least arguably transformative work cannot be countenanced."

District Court judge Deborah Batts issued the injunction in question in June after Holden Caulfield's creator, reclusive novelist J.D. Salinger, sued to block publication and distribution of 60 Years Later in the United States (the book has already been published in the U.K.).

In making her ruling, Batts found that Colting's work did infringe Salinger's copyright--on the Caulfield character as well on The Catcher in the Rye--and rejected the argument of Colting's lawyer, Edward Rosenthal of Frankfurt, Kurnit Klein & Selz, that the book was not a Catcher sequel, as originally advertised, but rather a parodic commentary on the relationship between the author, his book, and his most famous character. As such, Rosenthal maintains, 60 Years Later is a transformative work and therefore protected by copyright law's fair use provisions. Rosenthal filed his appeal with the Second Circuit last month. Salinger's reply is due within the next couple of weeks, and oral arguments could come as early as late August.

In their brief, the news organizations argued that Rosenthal's fair use claim has merit.

"While the district court determined that the fair use defense was not decisive, it certainly is the case that the literal reincarnation of Holden as a senior and his interaction with Mr. Salinger, who is trying to kill him, forms tranformative commentary on the book which--as opposed to sheer piracy--brings it into the realm of fair use."

As a precedent for allowing the book's publication, the brief cites the Pentagon Papers case, which the Supreme Court refused to suppress even though government officials claimed that publishing them would hinder both war and peace efforts during the Vietnam War. And the argument against publishing 60 Years Later, the amici say, is much weaker.

"Yet in this case, where the only harm appears to be to the pride of a reclusive author in not having his desires fulfilled barring commentary about his iconic book and character, without any actual financial harm, the lower court saw fit to ban publication of a new book," the brief states. "Such a result defies common sense, and is not--and cannot be--the law."

Salinger's lawyer, Marcia Paul of Davis Wright Tremaine, did not immediately return a call seeking comment. She has argued that, on one level, the case is about Salinger's legal right to keep Holden Caulfield "frozen in time."

By filing their brief, the news organizations joined forces with a pair of librarian groups who filed their own amicus brief in support of 60 Years Later's publication earlier in the week.(Download Salinger-Libriarians Brief here.)

In an ironic twist, one of that brief's coauthors--and therefore, by extension, one of The Associated Press's allies--is Anthony Falzone of Stanford University Law School. Falzone and The AP are on opposing sides in another high-profile copyright case currently playing out in federal court: the battle between the news service and artist Shepard Fairey over the latter's use of an AP photo for his iconic "Obama Hope" poster.

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