Nine Months Later: Colting Slips Away from The Catcher

 

By Peter Karol, a member of our Litigation Practice Group

 

L

ast summer, a federal judge in New York barred Fredrik Colting and his publisher from selling Colting’s novel 60 Years Later: Coming Through the Rye, finding it likely to infringe J.D. Salinger’s enduring classic The Catcher in the Rye. The decision was  ardently debated by legal and literary scholars, civil libertarians, journalists and Salinger fans alike.

Commentators tended to agree that Colting’s appropriation of various elements of Catcher (characters, language, bits of narrative, theme, etc.) was an infringement not likely to constitute permissible, transformative parody under the Copyright Act.  Colting (who wrote under the name J.D. California) damaged his persuasive powers in this regard by marketing the novel as a “sequel.”

A chorus of voices, however (including this author’s analysis) speculated whether the harsh remedy of a preliminary injunction was truly called for. Did we really need to ban a book that was by most accounts a literary failure prior to a trial on the merits? Mr. Salinger, for example, had publicly disclaimed any intention of authorizing a sequel, so he was unlikely to be losing any potential derivative market from the immediate publication of 60 Years.

For her part, the district court judge, Deborah Batts, had shown little interest in the remedy question. Instead, she focused the lion’s share of her opinion on whether Salinger was likely to succeed on his copyright claim. The court simply presumed Salinger’s right to an injunction upon such a finding.

On April 30, the U.S. Court of Appeals for the Second Circuit sided with the skeptics and vacated the injunction. The opinion was written by Judge Calabresi, former dean of the Yale Law School. Agreeing with the district court that Salinger was likely to prevail on his copyright infringement case, the appeals court nevertheless parted ways on the choice of remedy.

Specifically, it held that categorically presuming irreparable harm from a likelihood of success was no longer viable in the wake of the U.S. Supreme Court’s famed eBay v. MercExchange decision from 2006 (which had rejected the notion that an injunction is presumptively appropriate to remedy patent infringement). Rather, before a court can issue a preliminary copyright injunction, the plaintiff (here, Salinger) must actually demonstrate that he is likely to suffer irreparable harm in the absence of an injunction.

A district court, moreover, must consider the injury a copyright holder would suffer were an injunction not granted (principally, commercial harm to his copyright) and whether an award of money damages at the end of the case could not provide adequate compensation. Next, the court must balance the hardships between plaintiff and defendant and issue the injunction only if the balance tips in favor of the plaintiff.  Finally, the Court must ensure that the public interest (including the public’s interest in free expression) would not be disserved by the issuance of an injunction.

Judge Calabresi was careful not to take a position one way or another as to whether Salinger made the showing necessary to allow for an injunction in this case. That is for the district court to decide on remand, in light of the newly articulated standard. He did, however, note that the district court is free to consider additional facts, such as the death of Mr. Salinger during the pendency of the appeal, when the matter is again under consideration below. (Query, for instance, whether the literary trust that now owns Salinger’s copyrights in Catcher will be more or less likely to license a sequel than was Salinger himself).

It will be interesting to see how loyal Judge Batts will remain to Catcher, Salinger and her initial determination. On the one hand, the appellate decision gives her plenty of room to build the case for another preliminary injunction, albeit one guided by the standards that the appeals court announced. Judge Calabresi credited the historical tendency to issue preliminary injunctions in copyright cases. Many of the concerns underlying those time-tested irreparable-harm findings (such as the difficulty of proving damages) can be shown to apply with equal force here.

On the other hand, it could be tricky for Salinger’s attorneys to demonstrate just why it is that 60 Years must be banned pending trial, and why money damages could not sufficiently address any harm to Salinger’s copyright after the fact. A footnote in Judge Calabresi’s opinion sounds a particularly ominous note for Salinger on this point: “The justification,” he quotes, “of the copyright law is the protection of the commercial interest of the artist/author. It is not to coddle artistic vanity or to protect secrecy, but to stimulate creation by protecting its rewards.”

Whether an injunction is issued will likely, therefore, turn on the ability of Salinger’s trust to tell a convincing story of a dire commercial threat to Catcher, rather than to the late author’s image or privacy. Given that Salinger’s mystique is inseparable from his obsession with privacy, and that the value of Catcher is fairly well knotted up with Salinger’s mystique, one wonders whether it is even possible to separate the two at this point.

 

 

 

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