Tuesday, July 7, 2009

Fair Use, Copyright and Holden Caulfield

Last week, Judge Deborah Batts of the US District Court for the Southern District of New York issued a decision in Salinger v. Colting, 09 Civ. 5095, enjoining the publication of a sequel to J.D. Salinger's The Catcher in the Rye. The sequel titled 60 Years Later: Coming Through the Rye was written by Swedish author Fredrik Colting and features the story of a "Mr. C" (presumably Holden Caulfield) who departs his nursing home for a journey around the streets of New York City. Judge Batts found that Colting violated Salinger's copyright by borrowing liberally from the original work and that the new work did not amount to a critique or commentary on the original. The decision comes after a June 17 hearing where Judge Batts expressed skepticism that Colting's work should be considered "transformative" and thus exempt from a finding of copyright infringement under the Fair Use Doctrine.

Much of the ruling goes through the four factor test of fair use, focusing on why the new work was not a parody. The Court’s decision analyses whether this particular use was fair by considering these four factors:

  • The purpose and character of the use
  • The nature of the work
  • The amount and substantiality of the portion used in relation to the work as a whole
  • The effect of the use on the market or potential market for the original work
Judge Batts’ finding on the fourth prong, concerning the impact on the market for the copyrighted work, is confusing because the judge admits that it probably would not negatively impact the actual demand for Catcher in the Rye. There was no evidence that the new book would harm the market for an actual sequel. If JD Salinger announced he was writing a sequel, which seems highly unlikely, people would rush to get the "real" sequel. Even if Salinger were to license it to someone else to write, also highly unlikely, people would quickly learn of the "authorized" vs. "unauthorized" versions. It's difficult to see the effect of the new work on the market or potential market for the original work.

For more, see Judge Enjoins From Publication 'Meditation' on 'Catcher in the Rye' by Mark Hamblett in the New York Law Journal (password required).

The BLS Library has in its collection this title Composition & Copyright: Perspectives on Teaching, Text-making, and Fair Use edited by Steve Westbrook (Call #KF3020 .C66 2009).



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