Assembly (Resource)

boundary thing 001697 (60 Years Later: Coming Through the Rye)

In 1951, Jerome David Salinger wrote the book The Catcher in the Rye. The Catcher in the Rye tells the coming-of-age story of the sixteen-year-old Holden Caulfield, who, after being expelled from prep school, wanders around New York City for several days before returning home. The book was a bestseller. Literary critic Louis Menand described the Holden character as a cultural icon of “adolescent alienation and rebellion, a moral genius who refuses to be socialized”. Salinger never permitted and explicitly instructed his lawyers not to allow any adaptations of his book.

In 2009, a Swedish writer, named Fredrik Colting, published 60 Years Later: Coming Through the Rye under the pseudonym John David California. 60 Years Later: Coming Through the Rye tells the story of a seventy-six-year-old character, referred to as Mr. C, who lives in a world that includes a ninty-year-old unnamed author. The novel’s premise is that the unnamed author has been haunted by his character and now wishes to bring him back to life in order to kill him.

Salinger claimed that Colting’s novel, 60 Years Later: Coming Through the Rye, was a derivative work of The Catcher in the Rye and that the character of Mr. C is an infringement of the character Holden Caulfield. Colting responded that 60 Years Later: Coming Through the Rye was never intended to be a sequel to The Catcher in the Rye and claimed that it was a “critical examination of the character Holden and the way he is portrayed in [Catcher], the relationship between Salinger and his iconic creation, and the life of a particular author as he grows old but remains imprisoned by the literary character he created”. On July 1, 2009, the court case Salinger v. Colting took place at the United States District Court in New York. Judge Deborah Batts held that:

[The Court now addresses [Colting and Windupbird Publishing]’s claim that their novel 60 Years and its protagonist Mr. C constitute fair use of [Salinger]’s copyrighted work under [article] 17 [of the] U.S.C[opyright]. [...] 1. The Purpose and Character of the Use. [...] For purposes of our fair-use analysis, we will treat a work as a parody if its aim is to comment upon or criticize a prior work by appropriating elements of the original in creating a new artistic, as opposed to scholarly or journalistic, work. [...] 60 Years, however, contains no reasonably discernable rejoinder or specific criticism of any character or theme of Catcher. [...] 2. The Nature of the Copyrighted Work. [...] Here there is no question that in this case, the novel The Catcher in the Rye is a creative expression for public dissemination [that] falls within the core of the copyright’s protective purposes. [...] 3. The Amount and Substantiality of the Portion Used in Relation to the Copyrighted Work as a Whole. [...] Here, on the record currently before the Court, [Colting and Windupbird Publishing] have taken well more from Catcher, in both substance and style, than is necessary for the alleged transformative purpose of criticizing Salinger and his attitudes and behavior. Most notably, [Colting and Windupbird Publishing] have utilized the character of Holden Caulfield. [...] 4. The Effect of the Use Upon the Potential Market for or Value of the Copyrighted Work. [...] Because it is likely that the publishing of 60 Years would harm the potential market for sequels or other derivative works based upon Catcher, the fourth factor weighs, albeit only slightly, against fair use.

The court concluded that the fair use defense is likely to fail and a preliminary injunction should be issued. Colting appealed this decision. On April 30, 2010, the court case Salinger v. Colting took place at United States Court of Appeals. Judge Calabresi held that:

A. The first consideration in the preliminary injunction analysis is the probability of success on the merits. [...] B. Next, the court must consider whether the [Salinger] will suffer irreparable harm in the absence of a preliminary injunction. [...] C. Finally, courts must consider the public’s interest. [...] Because the District Court considered only the first of the four factors that [...] must be considered before issuing a preliminary injunction, we vacate and remand the case. But in the interest of judicial economy, we note that there is no reason to disturb the District Court’s conclusion [...] that Salinger is likely to succeed on the merits of his copyright infringement claim. [...] And for largely the same reasons as the District Court, we affirm the District Court’s finding that Catcher and 60 Years Later are substantially similar. [...] [W]e conclude, with the District Court, that [Colting and Windupbird Publishing] are not likely to prevail in their fair use defense.

The court vacated the preliminary injunction and remanded the case to the district court. On December 14, 2010, Fredrik Colting and the Salinger estate arrived at a confidential settlement agreement. No further legal proceedings followed.