Salinger Wins as Judge Blocks Publication of 60 Years Later
By Andrew Albanese -- Publishers Weekly, 7/1/2009 3:16:00 PM
Finding that author J.D. Salinger is “likely to succeed on the merits of its copyright case," a federal judge granted a preliminary injunction late on Wednesday afternoon, barring the publication of what Salinger’s attorneys called an unauthorized sequel to The Catcher in the Rye. In her decision, Judge Deborah Batts ruled that Fredrik Colting’s 60 Years Later would harm the market for “sequels and other derivative works” from Salinger and barred publication of Colting's book in the United States. Colting told PW he was “pretty shocked” by the ruling and vowed to appeal. Despite the ruling in New York, the book will be on sale in Europe, Colting added, sometime next week.
The ruling came as little surprise to court-watchers, who noted Batts’s obvious skepticism during oral arguments presented by Colting's lawyers, who contended that the work should be protected as parody under fair use. “While the court does find some limited transformative character in 60 Years Later,” the order read, “it finds that the alleged parodic content is not reasonably perceivable, and the limited non-parodic transformative content is unlikely to overcome the obvious commercial nature of the work.” Salinger’s attorneys had no comment.
Aaron Silverman, president of distributor SCB, also named in the suit, told PW that he hoped the case would move quickly through the appeal process."The lawyers will file for an appeal at the 2nd U.S. Circuit Court early next week on an expedited appeal," Silverman noted. "We're hopeful that the hearing will be in late July or early August and have an answer by early September at the latest."
The case is now set up much like the last major infringement case of this kind, when the estate of Margaret Mitchell sued to stop publication of Houghton Miffllin's The Wind Done Gone. The Mitchell estate won a preliminary injuction. The order, however, was overturned on appeal. The case was settled in 2002 before it went to a full trial, and the book was published, an outcome that would seem impossible here, given Salinger's insistence his work be left alone.
If Batts' ruling is overturned and a trial is ordered, Salinger, attorneys say, could finally be compelled to break his silence and be deposed. "The broad discovery rules would normally allow the defense to question Salinger on a number of relevant issues,” Paul LiCalsi, a partner in Mitchell Silberberg & Knupp explained to PW, after the case's initial hearing, "including Salinger's past actions and preferences about the exploitation of The Catcher in the Rye.” If Salinger refuses to comply and answer the defense's questions, LiCalsi noted, the court can impose sanctions and even dismiss the case. Thus, filing suit against Colting may have put Salinger's desire for privacy on a collision course with his desire to protect Holden Caulfield.