Second Circuit Weighs Appeal in Salinger Case
By Andrew Albanese -- Publishers Weekly, 9/3/2009 11:33:00 AM
A three-judge panel of the U.S. Second Circuit Court of Appeals yesterday heard arguments that a preliminary injunction barring U.S. publication of Swedish author Fredrik Colting’s 60 Years Later: Coming Through the Rye should be vacated. Despite a negative review of Colting’s book by one of the judges, Guido Calabresi, who called the effort a “dismal piece of work,” the judges’ questions suggested that the court was leaning toward giving Colting a second look in court.
“This case is about banning a book,” Ned Rosenthal, lead counsel for Colting, told the court, noting that such an extreme action should only happen after vigorous consideration of all the issues. In addition, Rosenthal argued, no evidence of any actual harm had been introduced in the preliminary hearing.
Salinger's attorney, Marcia Paul, faced a much more serious grilling than at the preliminary hearing, where Judge Deborah Batts, based on her readings of both Colting’s and Salinger’s books, seemed unconvinced that Colting’s work could be perceived as commentary or parody. This time, the court seemed to doubt whether sufficient evidence had been considered and asked Paul to explain why money damages would not sufficiently compensate Salinger, should the book be published and later found at trial to be infringement. Paul conceded that Salinger’s sole interest in the case is blocking the use of his characters and work, and that therefore Salinger’s grievance could not be addressed by money damages. “You can’t put the genie back in the bottle,” Paul said.
Will Salinger speak?
Colting’s appeal, filed in July, offered six reasons why Batts’s July injunction should be vacated: it is an impermissible prior restraint; it wrongly presumed irreparable harm without any evidence of actual harm; it extended copyright protection to the character Holden Caulfield; by erroneously holding that Colting’s book does not comment upon or criticize Salinger sufficiently to constitute fair use; by incorrectly rejecting Colting’s fair use defense based on the lack of evidence of harm to Salinger’s potential market or its authorized derivatives; and, procedurally, that the District Court failed “to require Plaintiff to post a bond.”
A finding for the defendants, on any one of these six arguments could serve as the basis for reversing the injunction. A number of high profile organizations, including major media companies like the New York Times, the Associated Press, Gannett and Tribune, as well as librarians, free speech advocates and legal scholars, have filed amicus briefs supporting Colting, urging the Appeals Court to overturn Judge Deborah Batts’s injunction barring U.S. publication, asserting that Batts erred by not allowing the case to proceed to a full trial.
Notably, Judge Calabresi, especially, seemed interested in an issue not raised in the proceedings thus far: the effect of the Internet—that is, the ability to buy Colting’s work online (it is available in Europe and has not been the subject of a lawsuit in any other country) and have it shipped into the U.S. On one hand, Calabresi’s Internet question suggested that the book’s availability may ease potential speech issues associated with the “banning” of the book in the U.S. raised by Colting’s lawyers, since it is still available. However, it also raised the idea that the preliminary injunction to stop U.S. publication while the book was widely available for purchase online was almost useless.
The court gave no date as to when it would rule, but the stakes are high. If the court vacates Batts's injunction, Colting’s lawyers confirmed for PW that they most certainly would seek to depose Salinger, putting the reclusive author’s desire for personal privacy on a collision course with his desire to stop Colting’s publication. If Salinger refuses to be deposed, legal experts have noted, the case could be dismissed.
