A Tennessee court this week transferred a copyright lawsuit filed against the heirs of J.D. Salinger from Tennessee to New Hampshire.
Citing a lack of jurisdiction, Judge Thomas Anderson dismissed the March 2015 lawsuit filed by Memphis-based indie publisher the Devault-Graves Agency against the Salinger Literary Trust in the state of Tennessee. But, citing “efficiency, fairness, and in the interest of justice” he agreed to transfer the case to the District Court of New Hampshire, where Salinger’s heir, Colleen Salinger, resides.
The suit accuses the Salinger Literary Trust of “tortiously interfering” with the Devault-Graves Agency's attempts to license foreign editions of its book, J.D. Salinger: Three Early Stories, a collection of three Salinger works in the U.S. public domain. The Devault-Graves Agency is seeking damages, a declaration from the court that the Salinger Literary Trust has no rights to the works in question, and an affirmation the publisher is free to sell its collection globally.
By granting the Devault-Graves Agengcy’s request to transfer the case rather than dismiss it outright on the jurisdictional issue, the judge essentially saved the publisher the pain and expense of starting their case again from scratch in another court. Still, the case likely faces an uphill battle in New Hampshire.
In filings, attorneys for the Devault-Graves Agency argue that Article 7 of the Berne Convention, known as the “Rule of the Shorter Term” mandates that copyright protection abroad cannot exceed the term mandated in a work's country of origin. They want a U.S. court to thus stop the Salinger estate from interfering with their attempts to license their edition of Salinger's public domain stories to publishers overseas.
The Salinger Literary Trust concedes that the stories in question are in the U.S. public domain, but claim that the terms of the Berne Convention are subject to a number of caveats, including the specific copyright laws of each country. “To properly determine the parties’ rights in each potentially relevant country would be extraordinarily complex,” Salinger attorneys argue, noting that an individualized inquiry into the laws of each of the 168 Berne signatories would be all but impossible. Accordingly, Salinger attorneys conclude, “these issues are best left to foreign courts.”
Bolstering their argument, a Regional Court in Berlin this spring barred publisher Piper Verlag from selling J.D. Salinger: Three Early Stories in Germany, holding that “copyright protection [for the] works in foreign countries was still possible.” Salinger attorneys argue that, at a minimum, the German court decision "belies" the contention that the Trust is tortiously interfering in the Devault-Graves' foreign deals "without any legal basis."