Catcher in the Rye (Alleged) Sequel Temporarily Enjoined From Being Published In The United States

This is not what the courtroom looked like.

I attended the hearing to show cause today in the J.D. Salinger lawsuit against the unauthorized (alleged) sequel  to Catcher in the Rye, “60 Years After.”  The judge, Deborah Batts, upheld a preliminary injunction prohibiting sale of the book in the United States.

The purpose of this proceeding was not to decide the ultimate issue of fact; namely, whether the character could be copyrighted, but rather to determine whether Salinger presented a sufficiently strong argument to warrant an injunction prohibiting publication of 60 Years After.

It was clear from early on in the proceeding that Judge Batts did not think much of 60 Years After, and I knew early on how things would turn out.

Here are some impressions:

Copyright in Holden Caulfield

First, Salinger’s attorney argued that the character of Holden Caulfield may be copyrighted.  The attorney for the defense responded that Holden Caulfield was clearly not copyrightable because (1) he appeared in only one work and (2) one must consider the character at the time of creation.  Taking these points in mind, Holden Caulfield was not sufficiently delineated in 1951 to be a protected character.

Judge Batts did not respond favorably to this argument.  She asked, “if he wasn’t sufficiently delineated, then why would anyone want to borrow him?”

Mr. Rosenthal responded that just because Holden Caulfield is famous does not mean he is entitled to extra protection.  He said in other cases the characters had been developed either in several works or in a visual manner.

But Judge Batts noted that there is no case in the Second Circuit holding that a character must be in represented in more than one work in order to be protected.  She also reiterated her question about why someone would want to use a character in a parody if the character wasn’t sufficiently delineated.

She held ultimately that Holden Caulfield is sufficiently delineated to be protected.  Holden, she said, was so closely linked to Catcher in Rye, that protecting the character was tantamount to protecting the work itself.  She listed some of the direct similarities such as the uses of specific phrases such as “grand” and ” to tell you the truth.”

Mr. Rosenthal said he opposed this motion and the Judge responded “I figured you would.”

Is 60 Years After Criticism?

Later in the proceeding, Mr. Rosenthal said that 60 Years After was “criticism” and “tremendously important commentary” of Catcher in the Rye.  Judge Batts’s response was quick, and went to the very heart of the matter: “how is it criticism?” she asked.

Rosenthal responded that it was criticism of J.D. Salinger and of Catcher in the Rye.   But Judge Batts correctly noted that it must be criticism of the work it copies.  Otherwise, any infringing work could be inoculated just by the very fact that it criticizes.  Mr. Rosenthal did not relinquish this argument without a fight, as he reiterated it many times throughout the proceeding.

Mr. Rosenthal made some other points about whether 60 Years After was criticism, however.  He said that 60 Years After was a comment on Holden Caulfield because Mr. C, the protagonist of 60 Years After, was very much alone later in life on account of his anti-social ways.  He also presented evidence from expert witnesses (apparently English Professors) that this book was criticism.  Ultimately, whatever the merits of this argument, it was not sufficient to prevent Judge Batts from enjoining the publication of the book.  She was particularly unimpressed with the defendant’s expert witnesses.

The Disclaimer

Mr. Rosenthal suggested that the company could put a disclaimer on the book that said that it was an unauthorized criticism of Catcher in the Rye and J.D. Salinger at once, but this did not carry any weight with the court.

Whether 60 Years After is a Sequel

There was also a strange argument that this book was not a sequel.  I was surprised by this argument because of the weight of evidence against it, which included the “J.D. California’s” statements that it wasn’t a sequel (which he later apparently recanted in a statement to the court).  If this book isn’t a sequel, then I don’t know what is.  Salinger’s attorney cited some dictionary definitions of “sequel” which defined the word as a “continuation of narrative.”  The judge did not accord the author’s statements that this wasn’t a sequel any weight.

Market Harm

Mr. Rosenthal argued that Mr. Salinger had presented no evidence of market harm, but the court did not really deal with this issue.