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Unauthorised Sequels (...continued)

Decision of Judge Deborah Batts in the United States District Court

So they were the basic arguments used by each side with respect to Salinger’s legal action in the District Court for a preliminary injunction preventing Colting and his publisher from publishing, advertising or otherwise distributing  “60 Years Later” in the United States during the pendency of that suit.

Judge Deborah Batts granted Salinger the preliminary injunction essentially for the reason’s that Salinger had argued for one.

In determining that there was a “substantial similarity” between the two books as well as between the character Holden Caulfield from “Catcher in the Rye” and the character Mr C from “60 Years Later” such that it was an unauthorised infringement of Salinger’s copyright, the court cited The Wind Done Gone case (Suntrust Bank v Houghton Mifflin Company 268 F. 3d 1257, 1266 (11th Circuit, 2001) where it was found that “substantial similarity” exists where “an average lay observer would recognise the alleged copy as having been appropriated fro the copyrighted work”.  The court also cited the case of Castle Rock Entertainment v Carol Publishing Group 150 f. 3d 132, 137 (2nd Circuit, 1998) where it was found that under the “ordinary observer” test, two works are substantially similar where the ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard the aesthetic appeal of the two works as the same.

The District Court then addressed Colting and his publisher’s claim that their novel “60 Years Later” and its protagonist Mr C constitute fair use of Salinger’s copyrighted work.

Again citing The Wind Done Gone case, the court noted that at the constitutional level, while the “Copyright Clause and the First Amendment [are] intuitively in conflict, [they] were drafted to work together to prevent censorship” such that “the balance between the first Amendment and copyright is preserved, in part, by the idea/expression dichotomy and the doctrine of fair use”.

1. the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

Applying this four factor analysis to “60 Years Later” the court found as follows:

Firstly, if the purpose or character of the use – be it for criticism, or comment, or news reporting or parody – is transformative (as opposed to merely repackaging and free riding on another’s creation) then there is a strong chance that such use is fair use. 

However, the court found that “60 Years Later” contained no reasonably perceived parodic character as to “Catcher in the Rye” and Holden Caulfield – mainly because “60 Years Later” simply rehashed the character attributes of Holden Caulfield – but as an old man.

The court found that the addition of Salinger as a character in “60 Years Later” is indeed novel, but commentary and criticism of Salinger in “60 Years Later” did not amount to the required critique or commentary of “catcher in the Rye” itself or the original Holden Caulfield. 

In applying this fisrt factor of the four-factor fair use test, it was not contested that “60 Years Later” was to be sold for profit so was of a commercial nature, and therefore this prong of the first factor weighed against a finding of fair use.

Secondly, looking at the nature of the copyrighted work.  The court found that the novel “Catcher in the Rye” is a creative expression for public dissemination that falls within the core of the copyright’s protective purposes” – so this factor also weighed against a finding of fair use.

Thirdly, looking at the amount and substantiality of the portion used in relation to the copyrighted work as whole, the court found that the ratio of the “borrowed to the new elements” in “60 Years Later” is unnecessarily high for any fair use purpose.  In addition to Holden Caulfield as the protagonist, “60 Years Later” depends upon similar and sometimes identical supporting characters, settings, tone, and plot devices to create a narrative that largely mirrors that of “Catcher in the Rye”. 

Fourthly, looking at the effect of the use upon the potential market for or value of the copyrighted work.  The court found that “60 Years Later” could substantially harm the market for a “Catcher” sequel – both because it could cause confusion in the market as to which was the true sequel or companion to “Catcher” or simply because of reduced novelty or press coverage.  That would remain true even if, as would undoubtedly be the case, significant residual interest in a Salinger-authored sequel would still remain.  So this fourth factor also weighed against a finding of fair use.

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