Appeal Filed to Overturn Ban in Salinger Case

[The Straight Story]

Appeal Filed to Overturn Ban in Salinger Case
By Andrew Albanese -- Publishers Weekly, 7/24/2009 8:30:00 AM

Lawyers for Swedish author Fredrik Colting and his U.S. distributor, SCB Distribution filed an appeal on July 23 with the Second Circuit Court of Appeals arguing that a July 1 injunction barring publication of Colting’s 60 Years Later: Coming Through the Rye, is an “impermissible prior restrain and an unwarranted extension” of copyright protection. “Without a shred of evidence of harm, the Plaintiff, the District Court has taken the extraordinary step of enjoining the publication of the book,” court documents read. “But is a complex and undeniably transformative comment on one of our nation’s most famous authors, J.D. Salinger, his best known creation, Holden Caulfield, and his most celebrated work, The Catcher in the Rye.”

The appeal offers six arguments for the injunction to be vacated: that the injunction is an impermissible prior restraint; that it wrongly presumes “irreparable harm,” without any evidence of actual harm; that it extends copyright protection to character Holden Caulfield even though Colting’s book is “not substantially similar” to any copyrightable elements in Salinger’s work; by finding 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 the District Court’s “failure to require Plaintiff to post a bond.” A finding for the defendants on any one of the six arguments could serve as the basis for reversing the injunction.

On July 1, District Court judge Deborah Batts ruled that author Salinger was “likely to succeed on the merits of copyright case,” and issued a preliminary injunction barring the publication of what Salinger’s attorneys called an unauthorized sequel to The Catcher in the Rye. In her decision, Batts ruled that Colting’s 60 Years Later would harm the market for “sequels and other derivative works” from Salinger. “While the court does find some limited transformative character in 60 Years Later,” her order read, Batts concluded that “the alleged parodic content is not reasonably perceivable, and the limited non-parodic transformative content is unlikely to overcome the obvious commercial nature of the work.”

After the ruling, Aaron Silverman, president of distributor SCB, also named in the suit, told PW that he hoped the case would move quickly through the appeal process. “We’re hopeful that the hearing will be in late July or early August,” Silverman noted, “and have an answer by early September at the latest.”

http://www.publishersweekly.com/article/CA6672842.html?desc=topstory

[Tangerine LaBamba]

1. That whole idea gave me the creeps -

it's like a hybrid kind of plagiarism. Or grave-robbing. Something for which I haven't yet found the word.

But, it's wrong. You do not piggyback on another author's work if that author wants you to back off. You do not leech onto his characters for your own benefit, and you do not keep whining after you've been told to quit.

Yes, yes, appeals are the right of the aggrieved party, but this one is beyond the pale. Using the "but for" test, you can simply say that but for the publication of "Catcher In The Rye," this work would never exist and cannot stand on its own merits..............