J. D. Salinger_ A Life - Kenneth Slawenski [223]
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On June 1, 2009, suit was filed in the Southern District of New York on behalf of J. D. Salinger and the J. D. Salinger Literary Trust. Plaintiffs sought a preliminary injunction against publication of 60 Years Later: Coming Through the Rye. Salinger viewed the sequel as a clear violation of his copyright and was suing to prevent its publication and distribution in the United States. He did not appear in connection with the filing of the complaint, nor would he be present thereafter during the course of the proceedings. He was represented instead by Westberg and by his attorney, Marcia Paul, the same lawyer who had successfully defended his interests during the Ian Hamilton case twenty-two years before.
Official hearings began on Monday, June 8, and the case was assigned to Judge Deborah Batts, a fifteen-year veteran of the Federal Court. From the start, Salinger’s team charged that 60 Years Later was “a derivative work,” that it consisted largely of material stolen from The Catcher in the Rye and should be banned as an infringement on Salinger’s copyright. They summarized their point of view with a bold statement that exposed the heart of the controversy: “The right to create a sequel to The Catcher in the Rye or to use the character of Holden Caulfield in any other work belongs to Salinger and Salinger alone, and he has decidedly chosen not to exercise that right.”6
With the attorney Edward Rosenthal at its head, Colting’s team was no longer characterizing 60 Years Later as a sequel. Instead, they took the position that the book was a parody, entitled to protection under the First Amendment and defensible, notwithstanding Salinger’s copyright interests, under the doctrine of fair use. They attacked Salinger’s claim that he owned the character of Holden Caulfield, recognizing it to be “the most fundamental issue raised.”7 “Were courts to grant the sort of protection to literary characters that plaintiff seeks for Holden Caulfield,” they argued, “fiction would be frozen in time.”8
Judge Batts was charged with considering other issues aside from Holden Caulfield: foremost, whether 60 Years Later was “transformative” enough to avoid infringement of Salinger’s copyright. Colting’s lawyers held fast that the book extended enough of Salinger’s original to make it a singular work, but Salinger’s lawyers called it “a rip-off pure and simple.” They produced a long list of marked similarities between the two books and went on to insist that Holden’s voice and vernacular were also protected.
However, if Colting’s side could convince the judge that his book was indeed a parody that offered sufficient and specific commentary on The Catcher in the Rye, Judge Batts would be inclined to afford it the latitude to borrow extensively from Salinger’s original. Colting’s lawyers pointed to the segments of his book where Holden confronts Salinger, holding them up as a commentary on the relationship between an author and his character. The argument had become their primary defense, but whether they had satisfied the court with enough commentary to justify the amount of material taken from Catcher remained unclear.
If Colting were to prevail anywhere, it should have been in regard to the judge’s final consideration: the effect 60 Years Later might have upon Salinger’s future ability to market his work. Salinger’s team contended that the distribution of 60 Years Later would dampen public appetite for a genuine Catcher sequel if Salinger ever chose to produce one, a reasonable point if it had involved any other writer. However, few expected a new book from Salinger at ninety, and the idea of Colting’s effort dissuading readers from purchasing The Catcher in the Rye simply made no sense.
To the media the legal arguments were a sleepy sideshow. Their interest remained fixed on Salinger himself, although the author had not been seen or heard from personally. Phyllis Westberg had submitted an affidavit