Temporary Restraining Order Issued in Salinger Case

by Andrew Albanese -- Publishers Weekly, 6/17/2009 1:09:00 PM

In a potentially precedent-setting ruling today, federal judge Deborah Batts ruled that J.D. Salinger’s most famous character, Holden Caulfield, is protected by copyright. She did not rule, however, on whether Swedish author Fredrik Colting’s use of Salinger’s iconic character in his book 60 Years Later: Coming Through the Rye was allowable under fair use, and issued a temporary restraining order blocking its publication. Salinger’s lawyers have asked for a preliminary injunction permanently blocking publication of the book in the U.S., claiming it is tantamount to an unauthorized sequel. Batts now has 10 days under the order to decide whether to enjoin publication of 60 Years Later, though she can extend that period by another 10 days if necessary.

Batts’s ruling is the first time that the Second Circuit has explicitly ruled that a single character from a single literary work is copyrightable. Colting’s attorneys argued that past cases have extended copyright to characters that are more clearly delineated—whether as recurring characters or via illustration or through extension into another medium, such as television. Batts, however, said that did not mean that single characters from single works could not be copyrighted, and ruled that Caulfield, though appearing in only one book, was sufficiently delineated.

On the question of fair use, Batts seemed thoroughly unmoved by defendants’ argument that their client's use of Holden Caulfield as a character, referred to as "Mr. C." in the book, is criticism or commentary. Frankfurt, Kurnit, Klein & Selz attorney Ned Rosenthal argued that whether or not Colting was successful in his attempt to use the Caulfield character or events from the Catcher in the Rye for commentary was not at issue, as long as the attempt to do so was perceptible. He argued that Batts should allow publication to go forward and require the plaintiffs to prove harm at trial. Before adjourning for lunch, however, Batts said that the commentary in 60 Years Later was "not perceptible at all" to her and left those in the courtroom fully expecting she would grant the plaintiff’s injunction. After the lunch break, however, Batts said that while she’d hoped to rule from the bench on the fair use issue, she had decided to explore the issue more, and would rule at a later date. Batts issued a temporary restraining order after defense attorneys argued that simply extending the parties' temporary agreement not to publish, which expired after today's hearing, would amount to a preliminary injunction if she did not rule in a timely fashion.

Whatever Batts's ultimate ruling on the fair use aspect of the case, a final decision in the case will most likely come from the appellate court, since Batts's decision will be appealed by either losing side. Given Salinger’s fierce desire to control his works, there appears little hope for any settlement in this case short of victory for one side. Attorneys for Salinger argued forcefully today for the author's right "not to publish." Salinger has a right, attorney Marcia Paul told the court, "to keep The Catcher in the Rye or Holden Caulfield frozen in time for the life of his copyright."

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