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.