The Salinger Copyright Case: Reading the Colting Book Shows It Is "Fair Use"
	By LAURA HODES
	Monday, July 20, 2009

On July 1st, Judge Deborah Batts of the US District Court for the Southern District of New York granted a preliminary injunction against the publication of 60 Years Later, Coming Through the Rye, a novel written by Swedish author Fredrik Colting under the pseudonym "J.D. California". Colting's novel features a character called Mr.C. who is presumably Holden Caulfield, made famous in J.D. Salinger's Catcher in the Rye. Judge Batts held that Colting had violated Salinger's copyright and that Colting's new work did not amount to a critique or commentary on the original, which would allow it to qualify as a "fair use" of the original copyright.

The decision comes after a June 17 preliminary injunction hearing at which Judge Batts said that the issue was not that she was having trouble determining whether the criticism in the new book was effective. "Let me be clear," she said. "I am having difficulty seeing that it exists" at all.

After ordering 60 Years Later from England, where it has been published, and carefully reading it, I have to disagree with Judge Batts's reasoning. I think Judge Batts gave too short shrift to the first, and most important factor of the fair-use test: whether Colting's use is "transformative." As the Supreme Court stated in 1994 in Campbell v. Acuff-Rose Music, Inc., "[t]he more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use."

In this column, I will argue that Colting's use of the copyrightable character Holden Caulfield is indeed "transformative," and should qualify under the fair-use test. Accordingly, I believe Colting's novel's U.S. publication should be permitted, not enjoined. (FindLaw columnist Julie Hilden earlier suggested that the same conclusion likely should be reached, but did so based on a description of the book, not the book itself, and without the benefit of Judge Batts's preliminary injunction ruling.)

The Classic Four Factor "Fair Use" Test and the Key First Factor

Judge Batts applied the well-established four-factor test for fair use of copyright as set forth in Campbell: (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 of the use upon the potential market for, or value of, the copyrighted work. As the Supreme Court noted in Campbell , "all of the four factors are to be explored, and the results weighted together in the light of the purposes of copyright," which is to protect and promote the ability of authors and artists to create new works.

Inherently, the fair-use doctrine mediates between two sets of interests: the property rights of the copyright owner, and the First-Amendment rights of authors and artists to express themselves, often by reference to the works of others. The test's first factor – transformative use -- has a special importance: Although transformative use is not necessary for a finding of fair use, it is nevertheless true that, as the Supreme Court stated in Campbell, "the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. Such works thus lie at the heart of the fair use doctrine's guarantee of breathing space within the confines of copyright and the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weight against a finding of fair use."
In her opinion, Judge Batts fails to find 60 Years "transformative." First, she reasons that the protection of parody only extends to works that criticize or comment upon the author's original work – here, Catcher in the Rye -- rather than upon the author himself. (The issue arose because Salinger himself is used as a character in Colting's novel.)

Why Judge Batts Rejected Any Parallel to a Gone with the Wind Parody

In addition, in her opinion Judge Batts refers to the court's opinion in The Wind Done Gone case, which found affirmatively that the novel The Wind Done Gone was a parody of the novel Gone with the Wind.

She quotes that court's reasoning: "For purposes of our fair-use analysis, we will treat a work as a parody if its aim is to comment upon or criticize a prior work by appropriating elements of the original in creating a new artistic, as opposed to scholarly or journalistic, work.

Under this definition, the parodic character of TWDG is clear. TWDG is not a general commentary upon the Civil-War-era American South, but a specific criticism of and rejoinder to the depiction of slavery and the relationships between blacks and whites in GWTW." Judge Batts then concludes that "60 Years, however, contains no reasonably discernable rejoinder or specific criticism of any character or theme of Catcher."

How Judge Batts Interpreted the TWDG Opinion Too Narrowly – and Without Consideration of Modern Literary Theory

Here, however, I think Judge Batts is reasoning too narrowly from the TWDG opinion. Colting is creating a criticism of Salinger and his character by focusing on the author-character relationship between Salinger and the character of Holden Caulfield. That criticism should cause the novel itself to qualify as "parody" or criticism of Catcher.

It's as if Judge Batts is presupposing that one must look at a novel separate from its author, a theory that to some extent parallels the deconstructionist school of thought sparked by Roland Barthes's declaration of the "Death of the Author" in his 1967 essay of that name. But, in contrast, Colting is exploring a postmodernist, self-referential take on the novel that forces us to look at the character as a creation of its author, and to question that relationship: How much control does an author, or should an author, have over his or her character?

In 60 Years Later, Colting -- far from declaring the death of the author -- forces an author to confront his own character. In so doing, Colting calls attention to the creation of a character by a particular author. Moreover, as Colting's plot progresses, Colting points out that authors can destroy as well as create. Indeed, he turns the idea of author-as-creator on its head by having Salinger try to kill Mr. C – that is, Salinger's most beloved character, Holden Caulfield.

Since Judge Batts fails to find that 60 Years has transformative parodic character, she then examines the transformative use of the characters, apart from parody. (Characters too can be protected by copyright.) The Judge finds that Colting's use of Salinger as a character has "some transformative value," but that "[a]t most … this device utilizes Catcher and the characters of Holden Caulfield and Salinger as tools with which to criticize and comment upon the author, J.D. Salinger…rather than on the work itself. Furthermore, the non-parodic, transformative aspect of Salinger the character is limited."

Here, the court's reasoning is flawed. Colting is using the characters of Caulfield and Salinger to comment not just upon the author, but also on the nature of writing, of authorship, itself.

Judge Batts Puts Too Much Weight on Characterizations of the Book By Its Publishers and Marketers

Further, Judge Batts finds that the transformative aspect of Salinger the character is too "limited" based on two flawed reasons.

First, she writes that the defendant's admission "as to the character and purpose of 60 Years as a sequel to a beloved classic belies any claim that this critique of J.D. Salinger and his behavior was the primary purpose of the novel. It is simply not credible for Defendant Colting to assert now that his primary purpose was to critique Salinger and his persona, while he and his agents' previous statements regarding the book discuss no such critique…"

Judge Batts also adds in a footnote that Colting and his publishers made no indication before the lawsuit was filed that the book was meant as a parody or critique of Salinger's work. "Quite to the contrary," she writes," the original jacket of '60 Years' states that it is ‘a marvelous sequel to one of our most beloved classics.'" (In contrast, the copy I received, and read, from Amazon UK does not mention a sequel; instead, it states on the back, "This is an Unauthorized Fictional Examination of the Relationship Between J.D. Salinger and his Most Famous Character.") In addition, Judge Batts refers to Colting's agent's one-time contention that 60 Years "is a completely freestanding novel that has nothing to do with the original Catcher in the Rye."

Surely these statements did Colting a tremendous disservice—but shouldn't the court examine the text on its own to determine whether it is "transformative," apart from any misguided, marketing statements about it? After all, the publishers' claim that the book is a sequel contradicts the agent's claim that it is "freestanding"; and in the end, both claims are mere "puffery." What should be at issue is the text itself, not any marketing claims about it.

Judge Batts Underestimates the Importance of the Salinger Character Based on Its Appearance in Only a Small Portion of 60 Years Later

The second flawed argument Judge Batts makes here cites as proof against the transformative nature of Salinger the character, the rarity of that character's appearance in the book. Specifically, Judge Batts points to the fact that "the character of Salinger is present in only 40 of 277 pages, many of which occur in a single chapter: chapter 20." Yet a mere page count of how often the character of Salinger appears in the novel surely is not an accurate gauge of whether the use of Salinger as a character makes the novel "transformative."

As noted above, it can be argued that Colting is using Salinger as a character in order to explore the nature of authorship and of an author's creation of, and control over, a character: To what extent is a famous character its own person, and not the property of its author? These are questions of criticism that 60 Years Later clearly raises, even if Salinger as character appears in a minority of the pages.

Moreover, while most of the book is in the Caulfield character's voice, as early as the second page, the Salinger character's voice enters: "I'm bringing him back. After all these years I've finally decided to bring him back." This early introduction of Salinger shows that the entire novel is concerned with questioning the notion of authorship and character, specifically that of J.D. Salinger, a writer known particularly for his reclusive nature, and for his refusal to write a sequel to his incredibly famous novel.

Indeed, the Salinger character's voice repeatedly enters the novel. On page 46, that character says, "There was a time when we got along fine, but soon enough it all changed. [Mr. C] started waking me in the middle of the night with questions about this and that…He was there when I woke and there when I fell asleep, but perhaps worst of all, he was in my dreams." And on page 48 -- in a twist from the original, in which Holden contemplates suicide -- the Salinger character thinks to himself, "I should have done with [Mr. C] just what Shelley did to her monster, so now, I will wipe my slates clean and finish what I've started. . .I worked so hard to get him to leave me alone, and now I'm the one bringing him back just so that I can kill him."

Later in the novel, the aged Caulfield character finds a notebook with Salinger's initials on it and feels compelled to travel to Cornish, New Hampshire to meet Salinger. The reader is taken inside Salinger's head, and also inside Mr. C's: "Every day for 60 long years he's been there with me, like an invisible shadow, and now he's finally here, outside my door…I don't think he will recognize me, I'm almost sure of it, but then what things are really sure?"

On page 229, Mr. C finds a file in Salinger's house that has tags featuring the names of all the characters from his life: "They're small printed letters and the letters create words I recognize so very well. Pencey. Mr. Spencer. Stradlater. Phoebe. D.B. Prostitute. Maurice. Museum of Natural History. Rye. Merry-go-round. Even Allie. It's all here. My entire life is here." Salinger tries to physically strike down Mr. C, and perhaps he does, for Mr. C "suddenly [feels] himself break in two, then in five and ten and eventually a thousand little pieces." But Mr. C's feeling of physical disintegration and his subsequently erupting into tears is more as a result of realizing that he is this author's creation: "I just know this is the one place I belong in the world, and that's why I'm crying. I'm crying because I hate this to be the home I longed for my entire life."

Did the Judge's Ruling Rest Erroneously on the Irrelevant Fact that Colting's Novel Could Have Been Much Better-Written?

This is not a sequel, and never should have been marketed as such. The larger project of the novel seems to be an exploration of what happens to a character that has taken on a life of its own, beyond the mere pages of a book that an author has created. It is a postmodern meta-narrative, a book concerned with the nature of authorship, with the nature of character, with the relationship an author has with his own character, and with how much control an author should have over his character (and how great the extent of the property rights the law grants an author should be).

Based on Judge Batts's opinion, it seems that if Colting had simply written more pages about Salinger the character, Judge Batts would have been more likely to have found the novel "transformative." As it is, she cited "the inconsistent use of the transformative element of the character of Salinger," found "the ratio of the borrowed to the novel elements [to be] quite high," and concluded that therefore, "its transformative character is diminished."

60 Years Later surely could have been better-written, and its parodic and transformative elements surely could have been strengthened and expanded upon. But I wonder if it was these issues – which really concern the quality of the writing, more than the legal nature of the work -- that doomed the novel in the Judge's eyes. If so, that would be a serious error – for the quality of a work is not relevant to whether it is "fair use." In Campbell, the Supreme Court quotes Justice Holmes explaining, "[i]t would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of [a work], outside of the narrowest and most obvious limits." Moreover, the Court adds, "First Amendment protections do not apply only to those who speak clearly, whose jokes are funny, and whose parodies succeed."

To me, the passages in Salinger's voice were the most interesting parts of the book. If I had been his editor (or his publisher's in-house counsel), I would have told Colting to expand upon Salinger's voice, making it more a part of the novel. In my view, doing so would have not only improved the novel's legal defense, but also its quality – by making it clearer to readers (like Judge Batts) that this is not a sequel, but a book concerned with exploring and questioning the very ontological notion of "character." But should Colting be condemned because, as an author, exercising his discretion, he decided not to follow this path?

A comment by Justice Story, quoted in Campbell, is relevant here: "[i]n truth, in literature, in science and in art, there are, and can be, few, if any, things, which in an abstract sense, are strictly new and original throughout. Every book in literature, science and art, borrows, and must necessarily borrow, and use much which was well known and used before."

n light of this truth, isn't it enough that, as the Court concedes, the Salinger character is somewhat novel and transformative, even if merely a little bit? Shouldn't a court err towards allowing the publication of such a work, rather than preventing a novel creation from seeing the light of day?

Laura Hodes is a writer and lawyer. She blogs at http://www.personalpolitic.blogspot.com/