The US book industry is eagerly awaiting an appeal court decision involving an unauthorised sequel of the classic novel The Catcher in the Rye. The litigation deals with the question of whether or not you can have copyright in a character. Please listen to an ABC Radio National interview with Shaun Miller - Partner at Marshalls & Dent.
“Catcher in the Rye” was written by American author J.D. Salinger
in 1951.
The book has since become a huge critical and commercial success and is now considered to be a classic work of mid-20th century literature. The book’s main character, through whom the story is told, is one Holden Caulfield – a 16 year old newly minted private boarding school drop out who embarks on 4 days wandering around New York – a journey of self-discovery, reflections and interactions with an array of characters and New York landmarks including the Natural History Museum and Central Park.
The book is written with a fresh literary “look and feel” – with unique turns of phrase, descriptions and dialogue.
Fast forward to the present day…an American author living in Sweden named Fredrick Colting (writing under the name John David California) wrote a sequel of sorts to Salinger’s famous and celebrated novel, “Catcher in the Rye”. The sequel, called “60 Years Later: Coming Through the Rye” portrays a 76 year old Holden Caulfield (referred to as “Mr C”) – the famed protagonist of the original work – wandering the streets of New York after having escaped from a retirement home.
Salinger, who is now 90 years old and living in recluse, was reportedly outraged that the book “60 Years Later: Coming through the Rye” brazenly stole, without Salinger’s permission, Salinger’s exact same character Holden Caulfield (along with a host of other characters from that original book) and placed them in the same location New York and used similar turns of phrase, descriptions and dialogue as in the original “Catcher in the Rye”.
Indeed, Salinger was so concerned that his rights had been trampled on that he brought a law suit against Fredrick Colting and his publisher alleging claims for Copyright Infringement and common law Unfair Competition.
The case raises a host of issues including:
Whether or not characters in books, films or even music lyrics attract the protection of copyright law;
If such characters do attract copyright protection, in what circumstances will the “fair use” exceptions to infringement of copyright – such as parody or criticism and review – apply;
When is a work simply derivative of an original work (and therefore more likely to breach copyright) and when is a work transformative of that original work (and therefore less likely to be in breach);
How does all this fit into the ideas/expression dichotomy that is the cornerstone of copyright law.
Also, how does the overriding imperative of Freedom of Expression – especially in the context of the US Constitution – affect these issues;
Can an author or publisher use the misleading and deceptive conduct sections of Part V of the Trade Practices Act (and the mirror fair trading legislation in the States and Territoris) or invoke the common law action of passing off to stop an unauthorised sequel.
Also, can an author rely on his or her moral rights in their original work to prevent an unauthorised copy;
J.D. SALINGER v FREDRIK COLTING ET AL
But first, I want to turn to Salinger’s law suit against Fredrik Colting and his publisher regarding the contested unauthorised sequel “60 Years Later: Coming Through the Rye”.
What were the basic arguments of each side.
Both sides acknowledged and agreed that (a) Salinger holds a valid copyright in the book “Catcher in the Rye” and (b) that Colting had access to that book.
So the first issue that the Judge Deborah A. Batts sought to determine was whether or not there is a substantial similarity between the two books.
Salinger’s lawyer submitted that there were two prongs to the substantial similarity question because Salinger was pleading two separate claims for copyright infringement. One is of the character Holden Caulfield. The second is of the book “The Catcher in the Rye”.
As to the first claim, Salinger’s lawyer said it was beyond doubt that the character Mr C in “60 Years Later” is Holden Caulfield from “Catcher in the Rye”. The question was whether the iconic character Holden Caulfield was protectable under copyright . It was submitted by Salinger’s lawyer that Holden Caulfield was a sufficiently delineated character to be protected under copyright law. This was despite there being only a literary description of Holden Caulfield, as opposed to a graphic representation. This was also despite the character Holden Caulfield only appearing in one work.
Regarding the second claim of substantial similarity between the two books themselves, Salinger’s lawyer argued that there was not merely substantial similarity by virtue of the taking of the character, but there were numerous other elements the “60 Years Later” copied including other characters, an attempt to imitate the narrative and the tone, the style and the settings (including Central Park, the cemetery and the Museum of Natural History). It was argued that the court should go beyond looking at the fragmented literal similarities and look at the total concept and feel of the two works.
Fredrik Colting’s lawyer argued that the character of Holden Caulfield as published initially is not sufficiently developed and delineated to attract copyright protection. In any event, Colting’s lawyer contended that even if Holden Caulfield attracted copyright protection (which he disputed) he did not believe there was the taking of sufficient amounts of Holden Caulfield to constitute copyright infringement.
As to the question of breach of copyright in “Catcher in the Rye” itself, Colting’s lawyer submitted that no expression was taken from that book and used in “60 Years Later” i.e. there was no direct copying of the text and that “60 Years Later” has 80 characters in it, only really three of which are from “Catcher in the Rye”. There are 25 characters in “Catcher in the Rye” that do not appear in “60 Years Later”. So there was no substantial similarity between the two books themselves.
The next issue to be looked at was whether, if “60 Years Later” did substantially copy the character Holden Caulfield and the book “Catcher in the Rye, whether that use was “fair use”.
Colting’s lawyer asserted that “60 Years Later” was written as critical commentary on the relationship between J.D. Salinger and the character he created, namely Holden Caulfield. “60 Years Later” was an unauthorised fictional examination of the relationship between J.D Salinger and his most famous character – and that the cover of the book (both back and front) will make that clear.. It’s not a sequel.
Colting’s lawyer contended that “60 Years Later” is commentary on the original work because the original work has become an iconic representation of a disaffected youth who has certain characteristics, “60 Years Later” is an analysis of the creation, the creator of that work (i.e. Salinger) and what happens to that character many, many years later when we see the character having lived his whole life. You start to have more understanding about what the character was and what the original book was and it changes your reading of the original work. In short “60Years Later” is literary criticism in a fictional form.
Colting’s council then raised the issue of the danger of granting an injunction in a copyright case - i.e. a prior restraint against the publication of a book before a full hearing, before a full exploration of all the issues - noting that the United States Supreme Court has expressed its concern about injunctions in copyright cases and that where there is a colourable fair use defence, that a remedy of an injunction is an extraordinary remedy. A prior restraint, it was argued, would raise very serious First Amendment issues.
In response to this, Salinger’s lawyer argued that “60 Years Later” was a sequel – pure and simple – and that the only question for the court to determine was whether that sequel was transformative or substantially similar to the original book. It was contended that “transformative” means: to take an original work and to somehow imbue it with new meaning, message or purpose, to provide something more for the public.
It was submitted that the only way that Colting had transformed the Holden Caulfield character was to make him 76 years old instead of 16 and the only way that Colting had transformed “Catcher in the Rye” was by adding some characters.
Furthermore, it was submitted that “60 Years Later” did not constitute literary criticism or parody.
In essence, Salinger’s lawyer asserted that this was a case about Salinger’s right not to have a sequel published, not to authorise a derivative work. i.e. it was a case about Salinger’s right to keep “Catcher in the Rye” and Holden Caulfield frozen in time for the full term of copyright.
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