Evoking Debate: A Critical View on Copyright

Salinger v. Colting

United States Court of Appeals, Second Circuit.

Colleen M. SALINGER and Matthew R. Salinger, as Trustees of the J.D. Salinger Literary Trust, Plaintiffs-Appellees, v. Fredrik COLTING, writing under the name John David California, Windupbird Publishing Ltd., Nicotext A.B., and ABP, Inc., doing business as SCB Distributors, Inc, Defendants-Appellants.

    Decided: April 30, 2010

Summary of case:

The case of Salinger v. Colting is a copyright infringement case that deals with an unauthorized sequel to J.D. Salinger’s famous novel The Catcher in the Rye.  In 2009, author Fredrik Colting, using the pen name John David California, wrote and published a novel entitled 60 Years Later: Coming Through the Rye (later shortened to 60 Years Later).  He did not seek Salinger’s permission to use the premise of his novel, Catcher, or his iconic main character Holden Caulfield, in 60 Years Later—not that the notoriously reclusive and prickly Salinger would have granted it.

Working from the background details of Catcher and even using Salinger himself—albeit in a fictionalized version—as narrator, Colting said he had used Catcher fairly (as in “fair use” of a previous work of art as the basis for a new work of art, and that he had a right to self-expression under the First Amendment).

When Salinger learned about 60 Years Later, he immediately sought a preliminary injunction to block the novel’s publication, advertisement, and release, asserting that Colting had infringed on both the copyright of Catcher and that of his character Holden Caulfield.

Colting argued that he had “not intended to write a sequel” to Catcher, but this argument fell apart because 60 Years Later had indeed been marketed as a sequel. Colting’s lawyers then argued that his novel was actually a “critical reflection” on Catcher, citing reviewers who described the novel that way and as a “meta-commentary” on Catcher. Furthermore, Colting’s lawyers argued that 60 Years Later was “transformative,” and thus, not an infringement of Salinger’s copyright.

The courts did not agree, describing 60 Years Later as “not transformative enough…though there might be a slight comment on Salinger himself” in the novel.

The first issue with Salinger’s lawsuit against Colting is that injunctions should only be granted if, by not issuing an injunction, the plaintiff would suffer irreparable financial harm. Because Colting’s novel could not cut into the profits of Salinger’s still-profitable novel, Catcher, and because Salinger himself has said publicly he will never write a sequel to his first novel, the injunction should not have been granted.

Salinger died while this case was still being heard by district courts, so his adult children became the appellees in his absence. In the end, the court stopped the preliminary injunction and sent the case back to the district court. If he hadn’t died, Salinger would probably have won his case of copyright infringement because Colting’s claim of “fair use” was dubious.

Final outcome, as reported on deadcaulfields.com:

The Appeals decision delivered in April, 2010 handed the case back to District Court for reconsideration, therefore avoiding many of the questions posed. The Salinger v. Colting case, once seemingly destined for the Supreme Court, came to a quiet end on December 14, 2010 when Fredrik Colting and the Salinger estate arrived at a “confidential settlement agrreement”. As a result, the author and backers of 60 Years Later agreed to a permanent injunction of their book in the United States, while at the same time forfeiting any recourse of appeal.

How did this case affect society?

This case raised two interesting questions: the first question is about preliminary injunctions and if these can be used in a case such as Salinger v. Colting; and the second is about the Fair Use Doctrine. The latter is more relevant to society at large, however, because the issue of censorship is entangled within the Fair Use Doctrine. Was Colting effectually censored by Salinger?

Copyright law has to balance the rights of the property owner (Salinger) with the rights to self-expression that other artists have; this self-expression may include references to other works of art. The Fair-Use Doctrine is supposed to mediate between these competing ideals.

As the web site deadcaulfields.com put it, the case of Salinger v. Colting was jolting because it made people “…fear not that Holden Caulfield would be stolen from J.D. Salinger, but that Holden would be stolen from us.” Can any other writer ever reference Salinger’s most famous character?


Digital Discussion: Two Articles on Copyright

Famous art inspires other works of art, but copyright usually lasts 70 years after an artist’s death. Also, the estate of an artist can sue people for copyright infringement if they use an image of a work of art without permission. So, how long should copyright last? If copyright did not apply, would artists stop creating art?

http://www.cnn.com/style/article/art-copyright-beg-steal-borrow/index.html

 

Because it’s so easy to share all types of information, we are growing used to enjoying and sharing art for free, online. When we do this, however, we aren’t giving the artists their due. Is free exposure the same as money for artists? No. Copyright laws need to be specifically written for online venues in order to protect the intellectual property rights of artists.

https://www.npr.org/2014/11/03/360196476/picking-the-locks-redefining-copyright-law-in-the-digital-age

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