J.D. Salinger Stops a Sequel, But Only In The U.S.

When Salinger v. Colting was first reported in the media, I assumed (like many people who believe that current copyright law constrains too much) that this was another bad result along the lines of the district court order in Suntrust Bank v. Houghton Mifflin, temporarily enjoining The Wind Done Gone from publication. (That order was fortunately vacated by the 11th Circuit Court of Appeals.)

So I was surprised to find that the result was correct and that District Court Judge Deborah Batts was justified in preliminarily enjoining Frederik Colting (writing as John David California) from publishing, advertising or distributing his book, 60 Years Later.

60 Years Later is the story of “Mr. C,” who is not Mr. Colting, but J.D. Salinger’s Holden Caulfield, 60 years after the events in Catcher in the Rye. Mr. Colting’s book relies heavily on Catcher in the Rye in every respect.

Under the law, the substantial use of another’s copyrighted work is permitted where the portion taken is used in a “transformative” way, that is, as a springboard to comment upon the prior work in an original and substantial manner. This means that the new work must “add[ ] something new, with a further purpose or different character, altering the [prior work] with new expression, meaning or message.”  Acuff-Rose v. Campbell, 510 U.S. 569 (1994) at 579.1 Normally this occurs in making a parody, but the Supreme Court taught that one shouldn’t put too fine a point on the word for the simple reason that a strict parody is only one type of possible transformation. As the 11th Circuit in SunTrust Bank interpreted it:

The Supreme Court’s definition of parody in Campbell, however, is somewhat vague. On the one hand, the Court suggests that the aim of parody is “comic effect or ridicule,” but it then proceeds to discuss parody more expansively in terms of its “commentary” on the original. Id. at 580, 114 S. Ct. at 1172. In light of the admonition in Campbell that courts should not judge the quality of the work or the success of the attempted humor in discerning its parodic character, we choose to take the broader view. For purposes of our fair-use analysis, we will treat a work as a parody if its aim is to comment upon or criticize a prior work by appropriating elements of the original in creating a new artistic, as opposed to scholarly or journalistic, work.

Suntrust Bank v. Houghton Mifflin Company, 268 F.3d 1257, 2166 (11th Cir. 2001).

In Acuff-Rose, the rap group 2-Live Crew was sued by the publisher of “Pretty Woman” for stealing the heart of that song in order to make its own version, which happened to poke crude fun at it. 2 In reversing the lower court rulings in favor of Acuff-Rose, the Supreme Court clearly considered 2-Live Crew to have transformed the song into a parody and remanded the case for further findings of fact. This was enough to end the legal dispute. Similarly, The Wind Done Gone almost certainly used the book on which it was based, Gone With The Wind, in a transformative manner, given that The Wind Done Gone was, in the words of the 11th Circuit, “a specific criticism of and rejoinder to the depiction of slavery and the relationships between blacks and whites in Gone With The Wind.” (Like the Supreme Court, the 11th Circuit remanded the case to the trial court for the actual determination, but the parties settled and the book was published.)

Unlike The Wind Done Gone60 Years Later was intended as a sequel to, rather than any kind of commentary on, the prior work. 60 Years Later is told from the perspective of the original book’s protagonist. Mr. C uses the same vocabulary and “has similar or identical thoughts, memories and personality traits to Caulfield, often using precisely the same or only slightly modified language from that used by Caulfield in Catcher, and has the same friends and family as Caulfield.” Both novels share the “same supporting characters, setting tone, plot devices.”3 In addition, the 76-year-old Mr. C is constantly remembering details of incidents and conversations that occured at 16, in Catcher in the Rye, creating a continuity rather than a transformation. Finally,

Colting does not use a change in style to reinforce any parodic or other tranformative purpose, but to the contrary, utilizes a very similar style with the effect of emphasizing the similarities between 60 Years and Catcher, rather than casting a new, contrary light upon the latter.

Nowhere is Colting’s literary intention to make a sequel clearer than in the publicity for 60 Years Later prior to the lawsuit. In a footnote which is absolutely crucial to the decision, the Court notes that the original book jacket proclaimed that 60 Years Later “a marvelous sequel to one of our most beloved classics.” Moreover, it cites these statements by the author (any ellipses are the Court’s):

  • Catcher in the Rye sequel published, but not by Salinger, guardian.co.uk, Alison Flood, May 14, 2009: “Just like the first novel, he leaves, but this time he’s not at a prep school, he’s at a retirement home in upstate New York,” said California. “It’s pretty much like the first book… He’s still Holden Caulfield, and has a particular view on things. He can be tired, and he’s disappointed in the goddamn [sic] world. He’s older and wiser in a sense, but in another sense he doesn’t have all the answers.”
  • (from the same article) “California said he was moved to write the book [] because he’d ‘always wondered what happened to [Caulfield] … he deserves to have another life than just his 16 years.’ He’d tried, he added, to be ‘very respectful’ to both Caulfield and Salinger’s status as ‘American icons.’ ‘I thought about it and tried to handle it very delicately. I like the story and Holden and I wanted to keep it respectful.”
  • Sequel to Catcher in the Rye Published, Boston Literary Scene Examiner, Ann Livermore, May 14, 2009: “California has said in various statements to the media that he was inspired to create a second half to the story because he’s ‘always wondered what happened…'”;
  • JD Salinger considers legal action to stop The Catcher in the Rye sequel, Telegraph.co.uk, Philip Sherwell, May 30, 2009: “Author John David California…said the message was described as a Caulfield-style tribute to a ‘great inspiration.’ He added: ‘He’s a great writer who influenced the entire world with the words he made up. It’s a tribute the way Holden would have said it.'”‘But this is no spoof,’ said Windupbird’s Fredrik Colting. ‘We are not concerned about any legal issues. We think 60 Years Later is a very original story that compliments Catcher in the Rye.”

Both the “Product Description” and “About the Author” on Amazon.co.uk — information which is supplied by the publisher (not invented by Amazon) — as well as two customer comments currently on the site, make it quite clear that the book is a sequel. Sequels are, and should be, the sole property of the author. Given that 60 Years Later contains no “reasonably discernable rejoinder” to or “specific criticism” of Catcher in the Rye, were J.D. Salinger to write a sequel, 60 Years Later would be its direct competitor. This may not be bad in itself, but Mr. Salinger would be placed in the untenable position of fighting for control of the very character he created. That Mr. Salinger doesn’t want a sequel and clearly will not write one should be his prerogative. A parody? No problem, but Mr. Colting didn’t write one.

As with many lawsuits in the digital age, Mr. Salinger’s will not accomplish exactly what he hoped for, at least for now. Anyone wanting to read 60 Years Later can order it from Amazon UK.

[1] Internal quotations and citations omitted.

[2] You can hear and compare 2-Live Crew’s version of “Pretty Woman” with the Roy Orbison original on the Clearance 13′-8″ website.

[3] See. pp. 25-26 of Judge Batts’ decision.

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