Salinger v. Colting

607 F.3d 68 (2nd Cir. 2010)

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Nature of the Case

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Facts

P published The Catcher in the Rye in 1951. It was an instant success. To date, it has sold over 35 million copies. Shortly after publishing Catcher, P did what Holden did not do: he removed himself from society. P has not published since 1965 and has never authorized any new narrative involving Holden or any work derivative of Catcher. P has never permitted and has explicitly instructed his lawyers not to allow, adaptations of his works. D wrote 60 Years Later: Coming Through the Rye (hereinafter “60 Years Later”) under the pen name “John David California.” 60 Years Later tells the story of a 76-year-old Holden Caulfield, referred to as “Mr. C,” in a world that includes Mr. C's 90-year-old author, a “fictionalized Salinger.” The premise is that P has been haunted by his creation and now wishes to bring him back to life in order to kill him. P sued and underscores the extensive similarities between 60 Years Later and Catcher. D responds that 60 Years Later is not, and was never intended to be, a sequel to Catcher. Martha Woodmansee, a professor of English and law at Case Western Reserve University, described 60 Years Later as a “work of meta-commentary” that “pursues critical reflection on P and his masterpiece [Catcher] just as do the articles that literary scholars conventionally write and publish in scholarly journals, but it casts its commentary in an innovative ‘postmodern’ form, specifically, that of a novel.” The court granted P's motion for a preliminary injunction, barring Ds from “manufacturing, publishing, distributing, shipping, advertising, promoting, selling, or otherwise disseminating any copy of [60 Years Later], or any portion thereof, in or to the United States.” The Court concluded that “there is substantial similarity between Catcher and [60 Years Later], as well as between the character Holden Caulfield from Catcher, and the character Mr. C from [60 Years Later], such that it was an unauthorized infringement of Plaintiff's copyright.” The court concluded that D's fair use defense is likely to fail and that therefore P has established a prima facie case of copyright infringement. Under Rule 65, to obtain a preliminary injunction a party must demonstrate: (1) that it will be irreparably harmed if an injunction is not granted, and (2) either (a) a likelihood of success on the merits or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation, and a balance of hardships tipping decidedly in its favor. The District Court presumed irreparable harm without discussion. This appeal resulted.