Copyright Law | Expert Legal Commentary
September 11, 2009
Salinger v. Colting: Too Much Borrowing, Not Enough Transforming to Constitute Fair Use
Salinger v. Colting
Olivier Taillieu of The Taillieu Law Firm and Jeff Zuber of Zuber Lawler & Del Duca
When the U.S. District Court for the Southern District of New York enjoined the sale of a book billed as a sequel to “Catcher in the Rye” (written by a different author), it found that the purported sequel heavily infringed on the original’s copyright. In Salinger v. Colting, ___ F. Supp. 2d ___, 2009 WL 1916354, No. 09 Civ. 5095 (S.D.N.Y. July 1, 2009), the Court rejected the sequel author’s claims of fair use, finding that the new book borrowed too heavily from the original without sufficient commentary, criticism, parody or other transformative effect to qualify for fair use protection. The case makes it clear that merely claiming fair use or parody will not suffice to protect unrestricted copying.
When Frederick Colting, writing under the pen name “J.D. California,” prepared to launch his book, “60 Years Later: Coming Through the Rye,” the book was billed as a sequel to the classic “Catcher in the Rye” by J.D. Salinger. The premise of “60 Years” was visiting the original “Catcher” protagonist, Holden Caufield, 60 years later and in a rest home, as he revisits the scenes of the original book. There are striking and substantial similarities in both books, in both style and content, with “60 Years” sometimes lifting entire sentences directly from the original word for word.
J.D. Salinger apparently did not see the flattery in the sequel and promptly filed suit against Colting and his publisher to enjoin the new book’s publication in the U.S., claiming that it infringed on his copyright.
At the hearing to show cause, the defendants argued that “60 Years” was protected under the Fair Use Doctrine, both as a commentary on Salinger’s original and as a criticism of the original rising to the level of protected parody. The court flatly rejected both arguments, finding that “60 Years” did not qualify for any fair use protection and granting Salinger’s motion for an injunction. Salinger v. Colting, ___ F. Supp. 2d ___, 2009 WL 1916354, No. 09 Civ. 5095 (S.D.N.Y. July 1, 2009).
THE COURT’S ANALYSIS OF THE “SEQUEL” UNDER THE § 107 FOUR FACTOR TEST
The Fair Use doctrine allows the use of copyrighted works for the purposes of criticism, comment, news reporting, teaching, scholarship and research. Section 107 of the 1976 Copyright Act (17 U.S.C. section 107). Courts balance four factors to determine whether a particular use qualifies for protection from infringement under the fair use doctrine:
1) The purpose and character of the use, including whether it is of a commercial nature (which is less protected) or for nonprofit, educational use (which is more likely to be protected);
2) The nature of the copyrighted work (with fictional and creative works being valued higher for fair use purposes than factual or informational works);
3) The amount and substantiality of the portion of the original work used in relation to the copyrighted work as a whole; and
4) The effect of the use upon the potential market for the original work, i.e. will sales of the proposed use negatively impact the market for the original and/or will allowance of defendant’s conduct impact the original.
17 U.S.C. section 107. Courts must perform a case-by-case analysis, weighing all four factors together in light of the overall purposes of copyright protection, in order to determine whether a certain use is protected under the fair use doctrine. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577-578 (1994).
At the heart of the defendant’s argument was his claim that “60 Years” was a parody of Salinger’s original. A parody is a form of comment or criticism that may have a transformative purpose. Campbell, at 579. “Parody may qualify as fair use only if it draws upon the original composition to make humorous or ironic commentary about that same composition.” Id. at 597. Parodies “quote from existing material [and use] some elements of a prior author’s composition to create a new one that, at least in part, comments on that author’s works.” Id. at 580. On the other hand, a new work that lacks any substantive commentary or criticism on the original and instead just borrows from it to get attention or to avoid creativity, a fair use claim is unlikely to lie. Id. at 581.
The Court found that “60 Years” did not contain any “reasonably discernable rejoinder or specific criticism of any character of theme of Catcher [in the Rye].” 2009 WL 1916354, at *5. Instead, the Court determined that Colting’s characterization of “60 Years” as directing commentary or criticism to “Catcher in the Rye” and its leading protagonist as disingenuous, calling them “post-hoc realizations employed through vague generalizations about the alleged naiveté of the original, rather than reasonable perceivable parody.” Id. This finding is likely based in large part on the fact that the defendants never characterized “60 Years” as a parody at all before they were sued.
The Court found that Colting merely took the original Salinger character, Holden Caufield, with essentially the same perspective and characteristics, and merely aged him 60 years, taking him back through the same scenarios. Colting did not add any new depth or mature quality or insight to Caufield, and he did not even change some of his words – he merely rehashed the same themes that were key to the original. “It is hardly parodic to repeat that same exercise in contrast, just because society and the characters have aged.” Id. at *6. As a result, the Court found that the new use had “no reasonably perceived parodic character as to “Catcher” and Holden Caufield.” Id. at *7.
“60 Years” includes in the book a relatively small section in which a writer named “Mr. Salinger” discusses the lead character – Colting characterized this as a meditation on the relationship between Salinger and the character he created. But the Court noted that this does not constitute protected parody either. While it was “a tool with which to criticize and comment upon the author… it does not  direct that criticism toward “Catcher” and Caufield themselves, and thus is not an example of parody.” Id. at *8.
Not only did the Court find that the new use failed to qualify as a parody, it also lacked enough other transformative use to justify a fair use defense. “’60 years’ borrows quite extensively from “Catcher,” both substantively and stylistically, such that, when combined with the inconsistent use of the transformative element of the character of Salinger, the ratio of the borrowed to the novel elements is quite high, and its transformative character is diminished.” Id. at *9. The lack of transformation, along with the commercial nature of the new use weighed heavily against a finding of fair use.
The second factor in the fair use analysis plainly weighed in the plaintiff’s favor, as “Catcher in the Rye” was certainly a fictional novel. The third factor also weighed heavily against the defendants, as “Defendants have taken well more from “Catcher,” in both substance and style, than is necessary for the alleged transformative purpose of criticizing Salinger and his attitudes and behavior.” Id. at *10. As to the fourth factor, the Court found that the publishing of “60 Years” could substantially harm Salinger’s ability to write or authorize his own sequel or derivative work – even though Salinger had never indicated an interest in publishing such a work, his ability to change his mind and retain his “opportunity” to do so must be protected. Id. at *15. Accordingly, the fourth factor also weighed against fair use, though not as heavily as the other factors.
Because all four factors weighed against a finding of fair use – particularly due to the lack of transformation and failure to establish true parodic use – the Court determined that “60 Years” constituted unprotected copyright infringement and issued an injunction banning the new book from publication or distribution in the U.S. Id. at *15-16.
Key to the outcome of this case were the both the publicity preceding the sale of “60 Years” and the content of the new book itself. In the pre-sale publicity, “60 Years” was prominently hyped as a sequel, a story of what happened to the original Salinger character after “Catcher in the Rye” ended. It was never billed as a commentary, criticism, or parody of the original, and the court pointed that out more than once.
Moreover, the new book borrowed heavily from the original – with the same characters, identical character traits, exact words from the original novel, even references to the same items of clothing. The new book simply transposes the same old characters into a new age without accomplishing any substantial change. These factors made the court’s determination of infringing use far from difficult, even in the face of the defendants’ convenient claims of criticism and commentary.
Subscribe to Copyright Law Updates
It's FREE and only takes seconds
About the Authors
Image Credit: ©iStockphoto.com/PaoloFrangiolli