The title of this piece, as every scholarly feline knows, is from chapter 24 of The Catcher in the Rye, the classic novel by the reclusive one-hit-wonder JD Salinger. Acute readers of the popular media will have noted that legendary literary lion has roared -- and the world of intellectual property has heard his call. The IPKat's friend Annsley Merelle Ward takes up the tale:
"Any “marvelous peace in not publishing” that JD Salinger, the reclusive author of The Catcher in the Rye, might have enjoyed seems momentarily at an end. As a fierce protector of his intellectual property, Salinger has instructed his lawyers (Davis Wright Tremaine, New York) this week to file a lawsuit in the US District Court in New York, claiming that a sequel entitled 60 Years Later: Coming Through the Rye infringed copyright in “both his novel and the character Holden Caulfield”. The suit aims to prohibit the publication, sale, distribution, advertisement or other dissemination of this sequel written by JD California and published by UK-based Windupbird Publishing, owned by Swedish company Nicotext. Windupbird, Nicotext and US SCB Distributors are all named as defendants in the suit.
On Monday Fredrick Colting, the founder of Nicotext, referred to the lawsuit as “completely ludicrous”, as reported in the Swedish paper The Local. Colting stated that even though 60 Years Later “was written in Salinger’s style ... words and imagination belong to everyone. You can’t copyright style. Otherwise, we wouldn’t have any books left”. However paragraph 4 of the lawsuit claims that 60 Years Later has gone further than this in copying The Catcher in the Rye’s structure, locations, characters and voice.
Assuming that Salinger’s lawyers can make out a prima facie case for copyright infringement, their main battle will occur later in disproving that the US affirmative defence of fair use does not apply -- specifically, that 60 Years Later is not a parody of Catcher. Fair use is a defence to copyright infringement if use of copyright material was for a limited transformative purpose. US courts will look to the four factors outlined in section 107 of the Copyright Act 1976 to determine whether a work is a parody: (1) the purpose and character of the use in 60 Years Later; (2) the nature of the copyrighted work; (3) the amount and substantiality of the copying; (4) and the effect of the use upon the potential market for or value of Catcher. It is argued that Salinger’s lawyers may have most difficulty in arguing the first factor or what is known as the “transformative test”, i.e. that 60 Years Later did not sufficiently transform Catcher into a new work. They also may encounter difficulty in arguing the third factor, i.e. that 60 Years Later copied a significant qualitative and qualitative amount from Catcher.
The preliminary hearing is expected at 2:30 pm on Monday 8 June 2008 before presiding judge Judge Deborah A. Batts [not Katts?]".
Annsley looks forward to seeing how quickly this case will be settled or, if not, how the arguments for the protection of a literary character under copyright will be advanced. Merpel says, how fortunate we are in the legal world of IP litigation to have our own guaranteed sequels -- we call them "appeals" ...