By David L. Fox
The pending U.S. publication of 60 Years Later: Coming Through the Rye, a self-described “sequel to one of our most beloved classics” that portrays the adventures of an aged Holden Caulfield of The Catcher in the Rye, has brought a court challenge by the famously litigious J.D. Salinger. Each side is accusing the other of hijacking the Holden Caulfield character. Salinger is contending that the new book violates his copyright to control his Caulfield character. The new book’s Swedish author, Fredrik Colting, is contending that enforcement of any Salinger copyright to prevent publication would violate U.S. free speech rights to criticize the Caulfield character.
Last week, a judge initially sided with Salinger, temporarily prohibiting publication of the new book in the U.S. The judge found that in his 1951 novel Salinger described Holden Caulfield sufficiently to copyright the character under U.S. law. This was significant because characters described in a single work of fiction usually cannot be copyrighted, as opposed to those described graphically (e.g., Mickey Mouse), or in serial works (e.g., James Bond). The judge concluded Salinger’s description of Caulfield was sufficient because Caulfield was presented in “a portrait of words.”
Colting’s right to publish his new book in the U.S. depends on whether his use of Caulfield falls within copyright “fair use.” Fair use allows otherwise copyrighted material to be used in the U.S. without the copyright holder’s permission where it meets certain requirements. Colting is alleging that his use of Caulfield qualifies as a fair use because it is literary criticism. Colting’s alleged literary criticism is based on his book’s description of the attempts of an elderly fictional Salinger to kill off the Caulfield character that he created in 1951. However, the judge said that she was having difficulty finding such criticism in the text: “Let me be clear . . . I am having difficulty seeing that it exists,” she said.
Salinger has challenged Colting’s fair use claim on several grounds. According to Salinger, Colting’s contention that his use of Caulfield is the subject of fair use criticism doled out by the fictional elderly Salinger is undermined by the fictional Salinger’s appearance in only about 6% of the book (approximately 30 of the book’s 277 pages). Salinger also points out that about 94% the book is virtually identical in character, tone, style, format, plot, and even language to his novel. This includes Caulfield narrating in the short, choppy sentences, and slang-peppered vernacular that are characteristic of the original, as well as Colting’s use of characters and situations that are nearly identical to those in Salinger’s original work.
The court is expected to make a final ruling soon. We can, however, expect the ruling to be appealed regardless of the outcome, considering Salinger’s energetic history protecting}his copyrights, and due to the fact that Colting is being represented (free of charge) in this high profile case by attorneys who argued in the high profile 2001 case of The Wind Done Gone case. In that case, the estate of Margaret Mitchell claimed that author Alice Randall and her publishing company Houghton Mifflin violated Mitchell’s copyright by writing a novel too close to the original. The 11th District U.S. Court of Appeals eventually ruled in Randall’s favor, saying the book was protected as a parody of a well-known work.
David L. Fox’s forthcoming book, U.S. Patent Opinions and Evaluations will be published by Oxford University Press in October. He is a Senior Counsel at Fulbright & Jaworski L.L.P., where he is in the Intellectual Property and Technology Section of the firm’s Houston location.
PREORDER: David L. Fox’s book
BUY: A copy of 60 Years Later while you still can.
READ: Janet Malcolm’s 2001 NYRB assessment of Salinger’s shaky reputation.