Appellate Panel Questions Lawyers in Salinger Copyright Case

In J.D. Salinger’s The Catcher in the Rye, a history teacher offers protagonist Holden Caufield some friendly advice: “Life is a game that one plays according to the rules,” he said.

A similar message was delivered Thursday by lawyers for Salinger seeking to block an allegedly unauthorized sequel to The Catcher in the Rye. They told a panel of the U.S. Court of Appeals for the Second Circuit that the new book, written by Swedish author Fredrik Colting, was not transformative and therefore could not be published under the fair use doctrine. Lawyers for Salinger and the new book’s author and publishers were peppered with questions by the judges, writes IP Law & Business editor Ed Shanahan.

In June, Salinger sued the authors and publishers of 60 Years Later: Coming Through the Rye, a book inspired by The Catcher in the Rye, alleging that they had produced an unauthorized sequel and infringed Salinger’s copyrights. Manhattan federal district court judge Deborah Batts enjoined publication of the book in July. The defendants appealed, and several large media organizations submitted amicus briefs on their behalf.

At Thursday’s arguments, Edward Rosenthal, a partner at Frankfurt, Kurnit, Klein & Selz representing Colting and his would-be U.S. distributor, SCB Distributors Inc., told the three-judge panel that 60 Years Later was “highly transformative with enormous amounts of commentary and criticism,” reports The Associated Press. “I believe it crystal clear that this book is not transformative under the law,” responded Davis Wright Tremaine’s Marcia Paul,” according to IP Law & Business. Paul’s original complaint called the book “a rip-off, pure and simple.”

Rip-off or not, the book did not fare well under the critical eye of Judge Guido Calabresi at Thursday’s hearing. He called it “a rather dismal piece of work.” But is the book legal–or a “phony,” as Holden Caufield might say? The panel did not issue a ruling, but Judge Calabresi said the case raised First Amendment issues and that the district court may need more evidence to decide.