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Julie Hilden

Salinger Sues: His Challenge to an Unauthorized "Catcher in the Rye" Sequel


Monday, June 22, 2009

Recently, The New York Times reported on the court battle between famously reclusive "Catcher in the Rye" author J.D. Salinger, and the Swedish writer known as "J.D. California" (real name: Fredrik Colting).

The fight focuses on Colting's novel "60 Years Later: Coming Through the Rye" – which is subtitled "An Unauthorized Fictional Examination of the Relationship Between J. D. Salinger and His Most Famous Character." The novel was published earlier in Britain. This suit concerns plans to publish it in the United States.

The novel tells the story of a now-76-year-old "Mr. C.," who encounters his creator, Salinger himself, and who revisits a number of locations and characters that Salinger's Caulfield had originally visited in "The Catcher and the Rye."

Salinger's suit calls the novel "a ripoff pure and simple" – caustically rejecting any claim that the novel is parody, or that it comments upon or criticizes "Catcher in the Rye" or the Holden Caulfield character in a way that would be protected by the "fair use" exception to copyright law.

On June 17, Manhattan-based U.S. District Judge Deborah Batts temporarily restrained the U.S. publication of Colting's book, for ten days. During that time, she will consider the merits of issuing a permanent injunction against the book's U.S. publication.

If the losing party appeals, which seems very likely, then the case will go up to the U.S. Court of Appeals for the Second Circuit -- which is well-versed in resolving "fair use" cases, thanks to its location in the heart of the nation's publishing industry.

In this column, I'll consider – based on the facts alleged in Salinger's complaint whether Salinger is likely to ultimately prevail in procuring a permanent injunction against the book's U.S. publication.

Copyrighting the Caulfield Character, and The "Fair Use" Test

One threshold issue here may be whether the character of Holden Caulfield is well-developed enough to be a copyrightable character. Judge Batts indicated that she thought so, commenting, "It's a portrait by words."

Judge Batts is probably right: 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.
Thus, this suit ought to concern whether Colting's novel falls into the "fair use" exception when it appropriates both the character of Holden and elements of the novel "Catcher in the Rye."

That analysis will be based on a well-established set of four "fair use" factors: (1) the purpose and character of the use and, in particular, whether it is a "transformative" use; (2) the nature of the copyrighted work; (3) the amount and importance of the portion used, in comparison to the work as a whole; and (4) the effect on the potential market for, or value of, the copyrighted work.

I've described the nature of the copyrighted work (and the allegedly infringing work) above, so I'll focus on factors one, three, and four in the rest of this column.

Is Colting's Book a Parody or Criticism of Salinger's Book, and/or of the Holden Caulfield Character?

First, regarding the purpose and character of the use, Colting's lawyers have claimed that the Swedish writer's unauthorized sequel offers a criticism of Salinger's "Catcher." Judge Batts, however, seemed to strongly disagree.

According to a reporter at the hearing, Batts indicated that she was not having trouble determining whether the criticism in the book was effective; for her, the problem went deeper than that. She remarked pointedly, "I am having difficulty seeing that [the criticism] exists."

Judge Batts had read Colting's book, and I have not, so I may be wrong – but my sense is that the Second Circuit might see at least some criticism or parody in the mere facts that Colting's book so dramatically ages Holden Caulfield; and that it drags a fictional character representing the famously-reclusive Salinger into an encounter with his most memorable character.

These changes are, at a minimum, irreverent, and at most, a direct attack on both our reverence for Holden, and Salinger's reverence for his privacy. Colting is surely criticizing the notion that the Holden Caulfield character is to be preserved forever in amber as the symbol of the alienated teenager.

In contrast, Salinger plainly wants to preserve Holden inviolate: He has said he will never write a "Catcher" sequel, and when asked about it, simply refers readers back to the original novel as providing the last word on Holden.

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.

Some evidence that a parody might have been intended or accomplished here, is simply this: Imagine if a Saturday Night Live comedian dressed as a very elderly man came out and started using Holden-Caulfield-isms, until viewers gradually realized whom the actor was portraying. Surely, viewers would laugh. If the skit would be clearly parodic, why isn't the novel?

While Colting's Copying May Be Substantial, the Market Harm Here Is Likely Negligible

That leaves us with the final two factors of the "fair use" analysis. Regarding the extent and importance of the copying, the complaint suggests that Colting's works copy Holden Caulfield's locutions, and that Colting's work co-opts parts of Salinger's plot.

But there's an interesting wrinkle here: If the work is indeed a parody, then arguably this appropriation is necessary to the parody. More specifically, if Colting's very idea is to parody the young Holden character by having an older version of Holden revisit his old haunts, and to put Holden's unique way of speaking in his older counterpart's mouth, then this copying, even if substantial, may be necessary to the parody. And surely copying that is necessary to parody should come under "fair use" more easily than would merely gratuitous or lazy copying.

Finally, there seems to be no market harm here. As noted above, 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).

In sum, this is a fight that is ultimately about control of a fictional work – not about a limited pot of money that only one person can access, or about two competing books vying for the same readers. Though Colting may make some money here, Salinger won't lose any. The same thing that makes Salinger's suit, in a way, a noble one – his attorney's fees are to protect his character, not his market – thus harms his case from a fair use perspective.

In contrast, for example, in the fight over the unauthorized "Harry Potter" encyclopedia – about which I have written before – the fight was about both control and money, for those who bought the unauthorized encyclopedia might have been somewhat less likely to buy J.K. Rowling's later authorized version.

To some extent, fights over fanfic are also about both control and money, as there's at least a chance that someday, an especially talented fan will sell books that preempt the market for the original.

It's worth remembering, finally, that there is another way to protect Salinger: Boycott Colting. Colting may have a right to publish, but he has no right to be read. And while copyright suits always have an uneasy relationship to the First Amendment, well-informed boycotts (that is, ones that truly understand the works their members are boycotting) are perfectly consistent with it – and are themselves an expression of a First-Amendment-protected view.

Julie Hilden, who graduated from Yale Law School, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99 and has been writing about First Amendment issues for a decade. Hilden, a FindLaw columnist, is also a novelist. In reviewing Hilden's novel, 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website,, includes free MP3 and text downloads of the novel's first chapter.

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