N.Y. Judge to Reconsider Salinger Copyright Case

(CN) - J.D. Salinger's widow and son were dealt a setback in their copyright claim over the derivative novel "60 Years Later: Coming Through the Rye." The 2nd Circuit ordered a federal judge to reconsider her injunction barring U.S. publication of the allegedly unauthorized sequel to Salinger's iconic novel "Catcher in the Rye."

The Manhattan-based appeals court ruled that U.S. District Judge Deborah Batts should have applied stricter criteria before issuing an injunction barring the publication, marketing and sale of "60 Years" in the United States.

Swedish author Fredrik Colting wrote "60 Years" under the pen name John David California. He said his book was a commentary on Salinger's bestselling coming-of-age tale about an alienated teenager named Holden Caulfield.

Colting's book, published last year, tells the story of a 76-year-old Holden Caulfield, referred to as "Mr. C," and his interactions with a "fictionalized Salinger." Salinger is haunted by his character and wants to bring him back to life to kill him. Mr. C becomes increasingly self-aware and travels to Salinger's home in New Hampshire, where Salinger decides to set him free instead. Mr. C reunites with his younger sister, Phoebe, and an estranged son, Daniel.

Salinger claimed the book was an unauthorized sequel that borrowed heavily from "Catcher," published in 1951. Colting denied the claim, saying "60 Years" was more akin to commentary or literary criticism of Salinger's work.

Judge Batts ruled for Salinger, saying Colting took "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."

She ruled that Colting's fair-use defense would likely fail, and that the Salingers had met their burden of showing copyright infringement.

To qualify for a preliminary injunction, the Salingers had to show that they would be "irreparably harmed" without one. However, Batts issued the injunction without requiring a showing of irreparable harm, as the 2nd Circuit has done in many cases.

The federal appeals court acknowledged that its "longstanding standard" is incorrect in light of the Supreme Court's 2006 decision in eBay v. MercExchange.

"Traditionally, this court has presumed that a plaintiff likely to prevail on the merits of a copyright claim is also likely to suffer irreparable harm if an injunction does not issue," Judge Guido Calabresi wrote for the three-judge panel. "[T]his court has nearly always issued injunctions in copyright cases as a matter of course upon a finding of likelihood of success on the merits."

The Supreme Court's ruling in eBay, a patent case, stipulated that the four-pronged test for deciding whether to issue an injunction should be neither too broad nor too narrow.

"Plaintiffs must show that, on the facts of their case, the failure to issue an injunction would actually cause irreparable harm," Calabresi explained.

The 2nd Circuit vacated the injunction and remanded for further consideration under eBay's tougher test for copyright injunctions. However, it stressed that there was "no reason to disturb" Batts' finding that "Salinger is likely to succeed on the merits of his copyright infringement claim."

Salinger, who died on Jan. 27, is now represented by his widow, Colleen Salinger, and his son, Matthew.

"Catcher in the Rye" is one of the best-selling books of all time, with 65 million copies printed.

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