Salinger v. Colting

• Decision Date: 30 April 2010
• Docket Number: Docket No. 09-2878-cv.
• Citation: 607 F.3d 68
• Parties: 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.
• Court: U.S. Court of Appeals — Second Circuit

607 F.3d 68

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.

Docket No. 09-2878-cv.

United States Court of Appeals Second Circuit.

Argued: Sept. 3, 2009.

Decided: April 30, 2010.

COPYRIGHT MATERIAL OMITTED

Marcia Beth Paul, Davis Wright Tremaine LLP, New York, NY, for Plaintiffs-Appellees.

Edward H. Rosenthal (Maura J. Wogan, Jessie F. Beeber, Cameron A. Myler, Marisa Sarig, on the brief), Frankfurt Kurnit Klein & Selz P.C., New York, NY, for Defendants-Appellants.

David E. Kendall, Thomas G. Hentoff, Kannon K. Shanmugam, Hannah M. Stott-Bumsted, Scott K. Dasovich, Williams & Connolly LLP, Washington, DC, for Amicus Curiae Motion Picture Association of America, Inc. in support of Plaintiffs-Appellees.

Anthony T. Falzone, Julie A. Ahrens, Sarah H. Pearson, Stanford Law School, Center for Internet & Society, Stanford, CA; Rebecca Tushnet, Georgetown University Law Center, Washington, DC; Jennifer M. Urban, Samuelson Law, Technology & Public Policy Clinic, University of California, Berkeley, School of Law, Berkeley, CA, for Amici Curiae American Library Association, Association of Research Libraries, Association of College and Research Libraries, The Organization for Transformative Works and the Right to Write Fund in support of Defendants-Appellants.

George Freeman, Itai Maytal, The New York Times Company, Legal Department, New York, NY, (Barbara W. Wall, Gannett Co., Inc., McLean, VA; Karen Flax, Tribune Company, Chicago, IL, of counsel), for Amici Curiae The New York Times Company, Gannett Co., Inc., and Tribune Company in support of Defendants-Appellants.

Deepak Gupta, Gregory A. Beck, Public Citizen Litigation Group, Washington, DC; Dan Hunter, New York Law School, New York, NY, for Amicus Curiae Public Citizen, Inc.

Before: CALABRESI, CABRANES, HALL, Circuit Judges.

CALABRESI, Circuit Judge:

Defendants-Appellants Fredrik Colting, Windupbird Publishing Ltd., Nicotext A.B., and ABP, Inc. appeal from an order of the United States District Court for the Southern District of New York (Deborah A. Batts Judge) granting Plaintiff-Appellee J.D. Salinger's ¹ motion for a preliminary injunction. The District Court's judgment is VACATED and REMANDED.

BACKGROUND

I.

Salinger published The Catcher in the Rye (hereinafter “ Catcher”) in 1951. Catcher is a coming-of-age story about a disaffected sixteen-year-old boy, Holden Caulfield, who after being expelled from prep school wanders around New York City for several days before returning home. The story is told from Holden's perspective and in his “own strange, wonderful, language.” Nash Burger Books of the Times, N.Y. Times, July 16, 1951. Holden's adventures highlight the contrast between his cynical portrait of a world full of “phonies” and “crooks” and his love of family, particularly his younger sister Phoebe and his deceased younger brother Allie, along with his developing romantic interest in a childhood friend, Jane Gallagher. While his affection for these individuals pushes him throughout the novel toward human contact, his disillusionment with humanity inclines him toward removing himself from society and living out his days as a recluse. He ultimately abandons his decision to live as recluse when Phoebe insists on accompanying him on his self-imposed exile.

Catcher was an instant success. It was on the New York Times best-seller list for over seven months and sold more than one million copies in its first ten years. Polly Morrice Descended from Salinger, N.Y. Times, March 23, 2008. To date it has sold over 35 million copies, Westberg Aff. ¶ 2, influenced dozens of literary works, and been the subject of “literally reams of criticism and comment,” Appellees' Br. 5. Literary critic Louis Menand has identified Catcher “rewrites” as a “literary genre all its own.” ² Holden at Fifty: “The Catcher in the Rye” and What It Spawned, The New Yorker, Oct. 1, 2001. The Holden character in particular has become a cultural icon of “adolescent alienation and rebellion,” Appellants' Br. 7, a “moral genius” “who refuses to be socialized.” Menand Holden at Fifty, supra.

Inseparable from the Catcher mystique is the lifestyle of its author, Salinger.³ Shortly after publishing Catcher, Salinger did what Holden did not do: he removed himself from society. Salinger has not published since 1965 and has never authorized any new narrative involving Holden or any work derivative of Catcher. Westberg Aff. ¶¶ 15, 16. Other than a 1949 film adaptation of one of his early short stories, Salinger has never permitted, and has explicitly instructed his lawyers not to allow, adaptations of his works. Id. ¶ 16. He has, however, remained in the public spotlight through a series of legal actions to protect his intellectual property. Id. ¶ 19. Salinger has registered and duly renewed his copyright in Catcher with the U.S. Copyright Office.

II.

Defendant-Appellant Fredrik Colting wrote 60 Years Later: Coming Through the Rye (hereinafter “ 60 Years Later”) under the pen name “John David California.” Colting published 60 Years Later with his own publishing company, Defendant-Appellant Windupbird Publishing, Ltd., in England on May 9, 2009. Copies were originally scheduled to be available in the United States on September 15, 2009. Westberg Aff. ¶ 2. Colting did not seek Salinger's permission to publish 60 Years Later. Id. ¶ 3.

60 Years Later tells the story of a 76-year-old Holden Caulfield, referred to as “Mr. C,” in a world that includes Mr. C's 90-year-old author, a “fictionalized Salinger.”⁴

The novel's premise is that Salinger has been haunted by his creation and now wishes to bring him back to life in order to kill him. Unsurprisingly, this task is easier said than done. As the story progresses, Mr. C becomes increasingly self-aware and able to act in ways contrary to the will of Salinger. After a series of misadventures, Mr. C travels to Cornish, New Hampshire, where he meets Salinger in his home. Salinger finds he is unable to kill Mr. C and instead decides to set him free. The novel concludes with Mr. C reuniting with his younger sister, Phoebe, and an estranged son, Daniel.

In bringing this suit, Salinger underscores the extensive similarities between 60 Years Later and Catcher. First, Mr. C is Holden Caulfield. Mr. C narrates like Holden, references events that happened to Holden, and shares many of Holden's notable eccentricities. Appellees' Br. 8. Also, Mr. C's adventures parallel those of Holden. Both characters leave an institution, wander around New York City for several days, reconnect with old friends, find happiness with Phoebe, and ultimately return to a different institution. Finally, within these broader structural similarities, the novels contain similar scenes, such as a climactic carousel scene. Id. 9-10.

Salinger also cites Defendants' efforts to market 60 Years Later as a sequel to Catcher. The back cover of the United Kingdom edition describes the novel as “a marvelous sequel to one of our most beloved classics.” Westberg Aff. ¶ 32. In a 2009 interview in the Guardian, Colting describes 60 Years Later as “[j]ust like the first novel.... He's still Holden Caulfield, and has a particular view on things.” Alison Flood, Catcher in the Rye Sequel Published, but Not by Salinger, Guardian, May 14, 2009.

Colting responds that 60 Years Later is not, and was never intended to be, a sequel to Catcher. Rather, Colting claims that it is 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.” Appellants' Br. 9-10. In support of this claim, Colting first emphasizes that a main character in 60 Years Later-Salinger himself, who narrates portions of the novel-does not appear in Catcher. Next, he explains how the Mr. C character evolves from a two-dimensional and absurd version of a sixteen-year-old Holden into a real person with a rich life completely apart from Catcher. Finally, he relies upon the declarations of two literary experts. Martha Woodmansee, a professor of English and law at Case Western Reserve University, described 60 Years Later as a “work of meta-commentary” that “pursues critical reflection on J.D. Salinger and his masterpiece [ Catcher] just as do the articles that literary scholars conventionally write and publish in scholarly journals, but it casts its commentary in an innovative ‘post modern’ form, specifically, that of a novel.” Woodmansee Decl. ¶ 9. Robert Spoo, a professor at the University of Tulsa College of Law, found 60 Years Later to be a “sustained commentary on and critique of Catcher, revisiting and analyzing the attitudes and assumptions of the teenaged Holden Caulfield. In this respect, [ 60 Years Later] is similar to a work of literary criticism.” Spoo Decl. ¶ 7.

III.

On July 1, 2009, the District Court granted Salinger's motion for a preliminary injunction, barring Defendants from “manufacturing, publishing, distributing, shipping, advertising, promoting, selling, or otherwise disseminating any copy of [ 60 Years Later], or any portion thereof, in or to the United States.” Salinger v. Colting, 641 F.Supp.2d 250, 269 (S.D.N.Y.2009). In doing so, it found that (1) Salinger has a valid copyright in Catcher and the Holden Caulfield character, (2) absent a successful fair use defense, Defendants have infringed Salinger's copyright in both Catcher and the Holden Caulfield character, (3) Defendants' fair use defense is likely to fail, and (4) a preliminary injunction should issue.

The District Court disposed of the first two issues in its decision's introduction. Defendants did not contest that Salinger has a...