A three-judge appeals panel today heard arguments from Fredrik “JD California” Colting’s legal team that Judge Deborah Batts acted in haste this past July in issuing a restraining order against publication of the so-called sequel to JD Salinger’s The Catcher in the Rye.

While there was no immediate ruling issued in today’s proceedings, there was one verdict, of sorts:

Judge Guido Calabresi was sure of one thing though — his opinion of the novel by Swedish author Fredrik Colting. He gave an instant review of the book that’s already published in England, referencing it as “this rather dismal piece of work if I may say so.”

Slate’s Juliet Lapidos reads J.D. California’s book so you don’t have to:

California’s allusions contain little charm, but his original material is far worse. To reinforce the idea that Salinger’s teenager is now an old man, California gifts him a urological problem: References to his full bladder are many and close between, and C’s continence fails him on more than one occasion. Not wishing to completely unman C, California drops in a revolting sexual tussle with a voracious young woman: “I roll harder and faster and I feel my erection roll with me, but still the animal is there, pushing into my mouth,” C tells us. (Impressive stamina for a trouser-soaking geriatric.) But the single most repellent line is a reference to the female reproductive system, not the male one. Salinger says of C: “Every day since I created him, every day since I pushed him through the uterus of my mind, I have thought of him.”

Read the entire piece here.

(via justia.com)

ORDER: Given the Court’s finding that Plaintiff is likely to succeed on the merits of its Copyright claim, as well as the presumption of irreparable harm, the Court preliminarily enjoins Defendants from manufacturing, publishing, distributing, shipping, advertising, promoting, selling, or otherwise disseminating any copy of 60 Years or any portion thereof, in or to the United States. (Signed by Judge Deborah A. Batts on 7/1/2009)

To view a larger version of the Order, click here.

MEMORANDUM & ORDER, that given the Court’s finding that Plaintiff is likely to succeed on the merits of its Copyright claim, as well as the presumption of irreparable harm, the Court preliminarily enjoins Defendants from manufacturing, publishing, distributing, shipping, advertising, promoting, selling, or otherwise disseminating any copy of 60 Years or any portion thereof, in or to the United States. (Signed by Judge Deborah A. Batts on 7/2/09)

To view a larger version of the Memorandum and Order, click here.

Sometimes you go looking for the story and sometimes, when you’re lucky, the story comes to you.

My breaking news item earlier on J.D. Salinger’s court victory today received a welcome visit from Andrei Mincov, a Law PhD with 13 years of experience as an intellectual property lawyer in Russia. Now studying law in Vancouver, Mincov leveraged his international perspective in a recent “100-page comparative research paper on the treatment of parody in the copyright laws of common law countries and selected European countries”.

He was kind enough to post a link to his article on the Salinger case “Why Courts Should Not Allow the Parody Exception to Make a Parody of the Copyright Law”, and we welcome the opportunity to give it a more prominent introduction. A taste:

With today’s attempts of the activists of the so-called “fair copyright” movement to use parody as a flagman ship to break the ice of protection that copyright laws afford, parodists seem to be in a win-win situation. If the author of the original work does not sue them, then they are left to parasite from the fame of the original work. If they do get sued, then the activists will make sure that the parodist becomes widely known as a martyr standing up for the rights of creators of transformative works, if not simply famous as a writer²⁷. If the parodist successfully defends the case, they will be able to sell many additional copies of the parody based on the fame attracted by the lawsuit. Even if the parodist loses the case and the distribution of the parody is enjoined, the newly acquired fame generated by the lawsuit will allow the parodist to sell whatever he or she writes next in their new status of celebrity.

Read the whole article here.

I haven’t had a chance to read the whole 37-page ruling on the Salinger lawsuit yet (will link to it once it’s available online), but here are a couple of nuggets from Judge Deborah Batts, via City Room:

On the “parody” defense:

“To the extent Defendants contend that 60 Years and the character of Mr. C direct parodic comment or criticism at Catcher or Holden Caulfield, as opposed to Salinger himself, the Court finds such contentions to be post-hoc rationalizations employed through vague generalizations about the alleged naivety of the original, rather than reasonably perceivable parody.“

On the “criticism” defense:

“In fact, it can be argued that the contrast between Holden’s authentic but critical and rebellious nature and his tendency toward depressive alienation is one of the key themes of Catcher. That many readers and critics have apparently idolized Caulfield for the former, despite — or perhaps because of — the latter, does not change the fact that those elements were already apparent in Catcher.

It is hardly parodic to repeat that same exercise in contrast, just because society and the characters have aged.”

So where does it go from here?

Mr. Colting and his lawyer, Edward H. Rosenthal, said they would appeal. The decision means that “members of the public are deprived of the chance to read the book and decide for themselves whether it adds to their understanding of Salinger and his work,” Mr. Rosenthal said.

However:

While the case could still go to trial, Judge Batts’s ruling means that Mr. Colting’s book cannot be published in the United States pending the resolution of the litigation, which could drag on for months or years.

By then, even fewer people will give a shit about reading it than is even the case now. Your fifteen minutes have expired, Mr. California. Enjoy the sweet kiss of obscurity.

“I am pretty blown away by the judge’s decision. Call me an ignorant Swede, but the last thing I thought possible in the U.S. was that you banned books.” - Fredrik “J.D. California” Colting
.

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Ignorant Swede…

From Reuters:

NEW YORK (Reuters) - The publication of a book that novelist J.D. Salinger said ripped off his classic “The Catcher in the Rye” was halted by a U.S. federal judge on Wednesday.

The judge ruled in favor of Salinger after the reclusive writer last month sued to block publication of “60 Years Later: Coming Through the Rye” by Swedish author Fredrik Colting, written under the pen name John David California.

U.S. District Judge Deborah Batts said the main character in Colting’s novel — Mr. C. — was “an infringement” on Salinger’s main character, Holden Caulfield.

Galleycat reports on author Chris Anderson’s plagiarism problems in his new book, Free: The Future of a Radical Price (Hyperion). The Virginia Quarterly Review was first on the case with an exhaustive analysis. A sad case all round, made sadder by the author’s excuse that he was in a hurry…

In other plagiarism news, View co-host Elisabeth Hasselbeck is being sued by an author who sent her a copy of her health book, only to find Hasselbeck releasing an eerily similar book a year later…

…which all leads us to our profound thought of the day (courtesy of Alison Flood): Can publishing go any lower?

Why, yes… it can: The Village Voice snags an interview with everyone’s favorite intellectual property rapist, John David California, who continues his “gee, why is everyone so upset?” act.

In happier news, Dick Cheney gets his book deal.

Al Kennedy’s enthusiasm over his upcoming book of short stories is tempered by his paranoia over having to promote it.

Former astronomer and current Welshman Alastair Reynolds signs a 10-book deal worth £1,000,000.

Diane Davis, writing for the San Francisco Events Examiner, previews next month’s San Francisco International Poetry Festival.

Today in Literature: On this day in 1842, writer and reporter Ambrose Pierce was born in Horse Cave Creek, Ohio.

Julie Hilden, writing for FindLaw, offers a unique legal persepctive on J.D. Salinger’s ongoing lawsuit against Fredrik “J.D. California” Colting over his unauthorized Catcher in the Rye sequel, 60 Years Later.

Hilden starts by agreeing with U.S. District Judge Deborah Batts’ assessment that Holden Caulfield is sufficiently developed to be a copyrightable character:

“It seems hard to believe that such an indelible character would not qualify for copyright protection, especially in light of the character’s having such a distinctive and easily recognizable “voice” — thanks to both his unique way of speaking and his trademark phrases. The complaint points out, too, that the Holden Caulfield character has had a life outside “Catcher” itself, appearing in several Salinger short stories and thus further imprinting himself upon readers’ minds.”

One wrench in the works, according to Hilden, may come from the “parody” angle:

“But even if the book is an attack on both character and author, is it also a parody? Importantly, the Supreme Court’s most recent decision on parody, Campbell v. Acuff-Rose Music, Inc., makes clear that a parody need not be perfect (or even especially clear) in order to be recognized as such.

“The Court also noted that the nature of parody is to take aim at the original, and even make an “attempt at garroting it” by destroying its market so perhaps being an attack is one of the very indicia of a work’s being a parody.

“The Acuff-Rose decision also may indicate that where reasonable minds can differ, parody should be found. Indeed, in Acuff-Rose itself, Justice Kennedy, concurring, was “not so assured” that the song at issue was even a “legitimate parody” at all yet the Court protected it, and Kennedy chose not to dissent.

“Here, it seems likely that even though Judge Batts did not see a parody, the Second Circuit still might. And, again, the Acuff-Rose decision seems like a clear mandate to err on the side of finding a parody, not on the side of finding copyright protection. Following Justice Kennedy’s lead, appeals judges might well think twice before rejecting outright a parody defense that their colleagues find to be perfectly valid.”

Finally, Hilden concludes the case will likely hinge on “market harm” and, here, Hilden thinks it may be possible for Colting to prevail:

“…Salinger has made clear that he certainly does not ever intend to write a “Catcher” sequel, preferring that readers go back to the original “Catcher” and re-read it instead. Thus, Salinger will not be losing any money that he himself might have gained from a hypothetical “Catcher” sequel that would have competed in the market with Colting’s unauthorized sequel.

“Nor is it remotely likely that Colting’s work would make a dent in the market for “Catcher.” If the novel is a parody, it’s likely less than a stinging one, if it’s completely lost on the well-respected Judge Batts. And “Catcher” is so firmly enshrined in American culture, it simply is not going to be unseated by a book like this. The only outcome that might plausibly happen here is that some teachers and professors may assign both books a phenomenon that would doubtless make Salinger cringe, but that, again, would not affect the market for “Catcher” (and perversely, could even slightly enlarge it).”

Her ultimate conclusion, that the only real action that might be taken against Colting is a boycott, seems to me flaccid and rather disappointing. But it could well be where the law will come down.

From Publishers Weekly:

Batts’s ruling is the first time that the Second Circuit has explicitly ruled that a single character from a single 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.

It’s important to note that, while he appeared in only one book, Holden appeared in several short stories, at least one of which was published—”I’m Crazy” (Colliers magazine, 1945). Caulfield family members also appeared in “Last Day of the Last Furlough” (Saturday Evening Post, 1944). I would hope this is not lost in the case.

The following paragraph is far more amusing. The defense argued that scholarship need not be accomplished to any effective degree, but that the litmus test should be merely that a “perceptible attempt” was made:

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”…

What a circus.

U.S. Distict Judge Deborah Betts today placed a temporary restraining on the publication of 60 Years Later: Coming Through the Rye. The 10-day halt to publication will give Betts time to decide whether the book can be published or the case should go to trial.

Betts said: “There is a great deal of substantial similarity in terms of format, (specific phrases), expressions, the way he talks, in the ways the books are crafted, the short period of time in each, the fact that there are visits to Central Park, to the Museum of Natural history, the characters, the settings. And every time there is a throwaway reference it’s obviously meant to connect to the events in the (original) book.”

Looks like this will get interesting.

News coverage:

Judge delays ‘Catcher’ spinoff (Hollywood Reporter)
NY judge weighs JD Salinger dispute (AP)
Publication of Holden Caulfield Novel Delayed (New York Times)
Judge halts “Catcher in the Rye” spin-off for now (Reuters)

The New York Times pulls together the latest on the Salinger lawsuit. Not much new here, but a decent primer if you’re just not hearing about it.

Jackpot! A soldier who bought a leather-bound copy of The Federalist for $7 when he was 16 sells it at auction for $80,000.

Poets reveal the strangest places they’ve ‘done it’.

Salon follows up on the Wisconsin book-burning brigade (previous AuthorScoop coverage here).

“Illustration collective” INK throws a book festival for imaginary books. Fun stuff.

Litkicks’ Michael Norris swoons over Proust.

Ulysses “enthusiasts” recreate Joyce’s masterwork on Twitter.

A Tale of Two Book Proposals: Dueling (and very different) biographies of David Foster Wallace compete for market share.

Will Amazon open the Kindle to other eBook formats?

In an effort to “assess the importance placed on name and reputation over quality of writing”, Fourth Estate has set up a fascinating literary challenge by anonymously posting short stories from nine of their writers, including Joyce Carol Oates and Chimamanda Ngozi Adichie. Your challenge, should you choose to accept it: match the story to the author. Alison Flood has more.

R.I.P. David Bromige

Today in Literature: On this day in 1938, T.H. White’s The Sword in the Stone was published as the first volume in what would become the quartet known as The Once and Future King.

As reported in this morning’s LitLinks, the legal team of John David California has gained the support of Sara Nelson, former Publishers Weekly editor, who has filed a brief in his defense claiming that 60 Years Later is “legally protected commentary and parody” (read her entire brief here - no .pdf this time).

Now comes the news that an additional expert, Martha Woodmansee, a professor of English at Case Western Reserve University, has weighed in, calling 60 Years Later “meta-commentary” and “a complex work, more complex” than The Catcher in the Rye (read her entire brief here).

I’m somewhat disappointed, though not surprised, that this is shaping up into a battle between intellectual property and scholarship. It makes me almost wish I’d taken that law degree correspondence course offered in the back of my old Captain America comic book…

Happy Bloomsday!

Today in Literature: On this day in 1904, James Joyce and Nora Barnacle had their first date, giving us “Bloomsday”, the day upon which Ulysses would be based.

The Guardian Book Blog takes us on a Bloomsday adventure around the “blogosphere and Twitterverse”.

Ulysses as a comic: Check out Robert Berry’s adaptation brought to life on the internet.

John David California’s legal team submitted a 33-page “defendants’ memorandum” in federal court yesterday, claiming that his book 60 Years Later is a “legally protected commentary and parody”…

…meanwhile Sara Nelson, former Publishers Weekly editor, joins the defense, filing “expert testimony” that 60 Years Later is “critical analysis” and further states: “Through my experience covering the publishing industry as a reporter and an editor, I understand the myriad variables that contribute to–or detract from–a book’s commercial success … 60 Years will have no detrimental impact on sales of Catcher … Anticipated sales of 60 Years, a critical analysis by a little-known author, pale in comparison to Catcher’s success … It is more likely that 60 Years, through its critical content and the attendant publicity it will likely generate, will actually contribute to renewed interest in, discussion of, and consequently sales of, Catcher.”

A full list of links to expert testimony and other documents compiled by the 60 Years Later defense team can be found here (note: dreaded .pdf format)

Amazon CEO Jeff Bezos says that the Google Book Settlement “needs to be revisited”: “It doesn’t seem right that you should do something — kind of get a prize for violating a large series of copyrights…You just can’t believe that’s the way it actually works.”

Harry Potter publisher, Bloomsbury Publishing Plc, denies allegations that J.K. Rowling copied “substantial parts” of  The Adventures of Willy the Wizard — No 1 Livid Land,” a 1987 book by Adrian Jacobs.

What happens when authors and poets report the news?

Morley Walker of the Winnepeg Free Press joins in the backlash against J.D. Salinger for having the sheer audacity to protect his work, calls him a whack job and tells him to sit down and shut up and “let his challenger reach for the brass ring.”

The New York Times breaks the earth-shattering story that authors can actually sign pieces of plastic.

3AM Magazine’s Sophie Erskine interviews poet Amiri Bakara and immediately gets smacked down for not doing her homework.

Molly Flatt looks at the transformational power of literature.

Business Week hails Simon and Schuster’s partnership with Scribd to sell ebooks as “the Hulu of publishing.”

The New Yorker explores how Nora Roberts became the most successful author in America (selling twenty-seven books a minute is a good start).

Robert McCrum talks himself down from the ledge of “Kindle anxiety.”

Obama’s half-brother, George, is writing a memoir for Simon and Schuster.

DailyCal reviews Edward Albee’s “At Home at the Zoo,” concluding that the writing outshines the production.

Today in Literature: On this day in 1300, Dante was made one of the six Priors of Florence, which would set off a chain of events that would eventually find him banished, albeit with plenty of material for the Divine Comedy.

Robert McCrum takes a look back at some of literature’s amusing working titles.

The Chronicle and LA times look back at the life, works and influence of the late Beat poet Harold Norse.

CNET’s Gadget Blog pits “old, real books” against a Kindle alternative.

San Francisco offers amnesty on overdue library books in exchange for an essay.

Actor Julianne Moore finding success as a children’s book author.

The Toronto Star catches up on the Salinger story.

Times Online’s features “Dog Days,” a short story by Jeanette Winterson.

The Guardian asks UK writers to recall works that evoked in them a strong senses of place.

Today in Literature: On this day in 1933, Jerzy Lewinkopf—who would later find international success as Jerry Kosinski with his best-seller The Painted Bird—was born in Lodz, Poland.

Michael Thomas wins the IMPAC Dublin Literary Award (and $140,000) for Man Gone Down, a novel “depicting the difficulty of attaining the American Dream for an African American.”

Simon and Schuster becomes the first heavyweight publisher to get on board with Scribd.

Juan Felipe Herrera, poet and professor of creative writing at the University of California, Riverside, takes the International Latino Book Award for Best Poetry in English for his most recent book Half of the World in Light: New and Selected Poems.

John David California, Winupbird Publishing and SCB Distributors lawyer up and say they’ll fight J.D. Salinger’s lawsuit to block California’s 60 Years Later: Coming Through the Rye. SCB spokesmouth Aaron Silverman: “Salinger’s ham-fisted attempt to squash this thoughtful book must fail.”

How will fictional works respond to our tough times?

UC Riverside scores a jackpot of 12,800 rare Thai books, but getting them on the shelves is proving to be a real challenge.

Ruth Padel to open this year’s Edinburgh International Book Festival with a talk about her great-great-granddad Charles Darwin—presumably staying away from the topic of her tumultuous nine-day stint as the first-ever female Oxford poetry professor.

Portland Literary Examiner’s Alex Zavlaris continues his countdown of the “top ten anti-heroes of modern literature” with his number 3 selection, Dexter Morgan. Catch up on the previous honorees here.

Today in Literature: On this day in 1381, preacher John Ball spoke at Blackheath to those assembled for the Peasants’ Revolt, which would—five centuries later—inspire William Morris’s A Dream of John Ball.

Brigid Delaney says you do:

The act of creating a character and creating a world for them to live in is so involving, generous and intense that the only analogy available is that of giving birth and being a parent. But once the book is out there in the world — available at airport gift stores and in bookstores — the nurturing has stopped and the author should step back.

Of course, terrible things can happen to books out there — and authors are right to fret. They can be used by murderers as a prop in their crimes (John Lennon’s killer was holding a copy of Catcher when he approached Lennon with a gun).

They can be made into bad films, awful radio plays and boring mini-series. On the net people may pay homage by writing dire fan fiction. Earnest PhDs devote the best years of their life to studying the minutiae of the book, feeling around for a sub-text when there is none. But as parents must learn to let go — often with sadness — so should authors.

I’m speechless.

Ladies and gentlemen, meet Fredrik Colting, aka John David California. Colting, 32, admitted in an interview this week that he is the man behind the book 60 Years Later: Coming Through the Rye, a sequel (of sorts) to J.D. Salinger’s classic The Catcher in the Rye.

The Associated Press briefly reported on the story a few hours ago, but The Smoking Gun is all over it, with the brilliantly accurate headline: “Hack Behind Catcher Flap”:

JUNE 10–The anonymous author of the purported sequel to “The Catcher in the Rye,” which has triggered a lawsuit by J.D. Salinger, is a Swedish man whose previous published works include “The Macho Man’s (Bad) Joke Book,” “The Erotic A-Z,” and a volume listing the 100 best heavy metal albums. Fredrik Colting, 32, acknowledged in an interview this week that he wrote the book “60 Years Later: Coming Through the Rye,” which Salinger has branded a “rip-off pure and simple” and triggered the reclusive 90-year-old author to file a federal copyright lawsuit. In a June 5 U.S. District Court order signed by Judge Deborah Batts, Colting is identified as “Fredrik Colting writing under the pseudonym John David California,” or J.D. California. A copy of the Batts order can be found below. Colting told TSG that, along with a partner, he has produced a variety of humor or “quirk” titles, but that “60 Years Later” was his “first published novel.” Colting, pictured at right, denied that the book was a “Catcher” sequel and said he was surprised that Salinger filed a copyright claim: “I’m Swedish, we don’t sue people here.”

Salinger reportedly responded (via the voices in my head): “This ain’t Sweden, kid.”

The Smoking Gun has posted the first three pages of an affadavit from J.D. Salinger’s agent, Phyllis Westberg, submitted to U.S. District Court as part of his lawsuit to halt further publication of J.D. California’s unauthorized sequel to The Catcher in the Rye.

The court document is interesting enough in that it demonstrates the conviction with which Salinger protects his work (he’s turned down offers from Harvey Weinstein and Steven Spielberg to make films based on The Catcher in the Rye), but it also serves to reveal details about the author’s life at 90: that he is deaf (this has been known for some time) and that he broke his hip last week and is currently recuperating in a “rehabilitation facility”.

Here’s hoping that the case is resolved soon and Salinger can enjoy the rest of his life without having to fight off the sharks and hustlers.

Read the affadavit here.

UPDATE: The Onion, as always, provides a little welcome levity.