The reclusive author JD Salinger, whose most famous work “Catcher in the Rye” was published in 1951, has issued legal proceedings in the United States District Court, Southern District New York in an attempt to stop publication in the US of an unauthorised sequel entitled “60 Years Later: Coming Through the Rye” by JD California.
The complaint asserts that “The Sequel infringes Salinger’s copyright rights in both his novel and the character Holden Caulfield, who is the narrator and essence of that novel”. It goes on to say that “For over 50 years… JD Salinger has been fiercely protective of both his intellectual property and his privacy” and that he “has not published or authorised the publication of any work derivative of The Catcher in the Rye since it was first published in 1951″. It further mentions occasions when Salinger has brought legal actions in 1974, 1986 and 2003-2004 to protect his intellectual property rights.
The complaint sets out three distinct claims:
- Copyright infringement of the Holden Caulfield character;
- Copyright infringement of the exclusive right to create works derivative of The Catcher in the Rye; and
- Common law unfair competition (under English law this would be a claim for passing off).
In English law, it is by no means clear that there can be copyright in a character as such. In this complaint, Salinger’s lawyers try to establish copyright infringement in the character by pointing out that the Sequel is told as a first-person narrative from Holden Caulfield’s point of view, that he is omnipresent throughout the Sequel, and that it makes use of every aspect of the Holden Caulfield character and characteristics. It compares incidents in the Sequel with the same or similar incidents in the original novel and quotes one example of a sentence in the Sequel which is almost identical to one in Salinger’s original novel.
It is reasonably clear from the promotional material for the Sequel that the character “Mr C” in the sequel is intended to be Holden Caulfield, but is called “Mr C” for legal reasons. Whether Salinger’s lawyers have done enough to establish infringement of copyright in the character Holden Caulfield under US law, I do not know (not being a US lawyer), but I’d be very interested to hear observations from those who who are qualified to comment.
US copyright law gives the copyright owner the exclusive right to prepare, and to authorise the preparation of, derivative works based on the copyrighted work. This is not a right specifically granted under English law. In order to establish infringement under English law, it would be necessary to show the unauthorised reproduction of a substantial part of the original work. That may be difficult in the absence of use of incidents, plot and language taken directly from the original work — the claim for copyright infringement in respect of Dan Brown’s book The Da Vinci Code, for example, failed.
The claim for common law unfair competition, on the face of it, appears to me to have some merit. The complaint alleges that the name “JD California” is a pseudonym deliberately intended to confuse the public and suggest that the Sequel was written by Salinger, when in fact it was not. Since the legal action commenced, it has subsequently emerged that JD California is indeed a pseudonym.
At the moment, the Sequel has not yet been published in the US, and although it has been briefly available in the UK, it is now listed on Amazon.co.uk as being “Not in stock; order now and we’ll deliver when available”.
The publisher and the author have now instructed lawyers to defend the US legal action, and clearly this will remain in the news until its ultimate resolution.