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Friday, 19 June 2009

10 Days Later: Coming through the Courts

Earlier this month, the IPKat brought news, via Annsley Merelle Ward, of the likely legal spat over the publication of a sequel of sorts to JD Salinger's Catcher in the Rye (see here). Annsley has now updated the Kat on this week's developments.


Right: here's the rye -- but where's the Catcher?

Annsley writes:
"After over an hour of argument in New York City, US District Judge Deborah Batts temporarily blocked publication in the United States for the next ten days of the unauthorized sequel, 60 Days Later: Coming Through the Rye. Having already ruled that there exist substantial similarities between the sequel and the original book, District Judge Batts is using those ten days to determine whether the sequel qualifies as "fair use" of Salinger's original work.

The lawyers for the sequel's author, Fredrick Colting (writing under the pseudonym JD California), argued today that 60 Years Later was a work of meaningful criticism of Catcher in the Rye and therefore benefited from the fair use defence under US copyright law. District Judge Batts stated that the next ten days will be used not to assess whether sequel's criticism of Salinger's work is sufficient to qualify for the defence of fair use but to ascertain whether the alleged criticism exists at all. At the end of the ten days she will decide whether to impose a permanent ban on publication in the US or to schedule a full trial.

As reported by Associated Press, Colting's lawyer Edward Henry Rosenthal claimed that injuncting the book prior to a full exploration of the book is "a prior restraint that raises very serious First Amendment questions". A lawyer for Salinger, Marcia Beth Paul, responded that prohibiting publication of a book that infringes another work's copyright is not akin to the banning of a book. Although there is undoubtedly an interesting debate as to whether copyright law should be permitted as a mechanism of quasi-prior restraint of freedom of speech, I have a feeling that the defence lawyer's arguments may not have as much mileage in court as they may have hoped.

Not failing to disappoint, District Judge Batts added that, despite the lack of legal precedent that holds that a purely literary character (absent any artistic characterizations via drawings or photographs) could be protected under copyright, Salinger's character Holden Caulfied may in fact be entitled to copyright protection. "It's a portrait by words," she said. "It is difficult in fact to separate Holden Caulfield from the book." I wonder if the question District Judge Batts will be asking is: If a portrait is worth a thousand words, how many words make up a portrait? I am unsure whether any judge would voluntarily want to be making a ruling on this question.

The written judgment is expected in the next ten days, or in the words of District Judge Batts "as soon as I can".

I can't help but echo the oracle that was IPKat's prediction two week's ago: Regardless of the decision, this case is destined to be subject to its own sequel in the US Court of Appeals".
Sources: Associated Press articles here and here; New York Times here
All available case documents pertaining to the case, including dockets, orders and applications, can be found here

More about rye here
Whiskey and rye here ... and hear

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