I posted here on June 5 that author J.D. Salinger filed a lawsuit seeking damages for copyright infringement and an injunction against the writer, publisher and distributor of a sequel to "Catcher In The Rye" .... "60 Years Later: Coming Through the Rye."

On July 1, 2009, U.S. District Court judge Deborah Batts issued a preliminary injunction barring the defendant from manufacturing, publishing, distributing, shipping, advertising, promoting, selling or otherwise disseminating “60 Years Later, “  the unauthorized sequel to J.D. Salinger’s novel, “Catcher in the Rye” in the United States.  Her opinion is posted here.

The Judge held Mr. Salinger was likely to succeed on a claim of copyright infringement after weighing, in detail, the factors for a fair use defense.

In a 37 page decision, the Judge first determined Mr. Salinger held a valid copyright for the “Catcher” and moved to a discussion of the fair use defense (17 USC Sec. 107).  The decision is a great resource for the history and line of cases related to fair use.

1.  The Purpose And Character Of The Use:  The court looked at the issue of parody citing case law that  “the parody must target the original, and not just its general style, the genre of art to which it belongs, or society as a whole.”  As to satire, “though the satire need not be only of the copied work and may … also be a parody of modern society, the copied work must be, at least in part an object of the parody.”  The court went on to hold that the new work did not comment or criticize “Catcher” or the character Holden Caulfield, but rather used vague generalizations.

The court also found a minimal transformative use of the work, which weighs in favor of the Defendant.  Counter-balance that finding with the fact the works is commercial in nature, which weighs against the Defendant.

2.  The Nature Of The Copyrighted Work:  “Catcher” is a work falling squarely under copyright protection.  This factor weighs in favor of the Plaintiff.

3.  The Amount And Substantiality Of The Portion Used In Relation To The Copyrighted Work As A Whole: The question here is not just how much is taken from the original work, but what quality is taken from the original work.  A smaller portion can be taken, and this factor weighs against a defendant, if what is used goes to the heart of the underlying work.  

The court found the taking of the primary character, the attributes of the character, and a similar and often repetitive story line amounted to taking too much.  “Because the Defendants have taken much more from Salinger’s copyrighted works than is necessary to serve their alleged critical purpose, the third factor weighs heavily against a finding of fair use.”

4.  The Effect Of The Use Upon The Potential Market For Or Value Of The Copyrighted Work:  The court found “60 Years” was in the nature of a derivative of “Catcher” and went on to state “while it appears unlikely that ‘60 Years’ would undermine the market for ‘Catcher’ itself, it is quite likely that the publishing of ‘60 Years’ and similar widespread works could substantially harm the market for a ‘Catcher’ sequel or other derivative works, whether through confusion as to which is the true sequel or companion to ‘Catcher,’ or simply because of reduced novelty or press coverage.”

The Defendant has appealed the decision and you can read the appeal here.