JD Salinger wins again. The US Federal Court in New York issued a preliminary injunction on 1 July 2009 preventing the various defendants (also, publisher, distributor) from manufacturing, publishing, distributing, shipping, advertising, promoting, selling or otherwise disseminating any copy of “60 Years Later: Coming Through the Rye”, or any portion thereof, in or to the United States. See various previous posts below for the lead up to the grant of the injunction. The judge, Deborah A Batts, had taken some time for consideration before issuing her judgment, which can be read here.
The issue of a preliminary injunction does not necessarily determine the final outcome of the case. It preserves the status quo until the matter can be argued in full at trial. And the issue of a preliminary injunction can be appealed — which the defendants in this case have indicated they intend to do. Nevertheless, there is a tendency for legal cases to end with the preliminary injunction — by this stage, both parties are likely to have spent a lot of money, not to mention time, and their appetite for a fight may have become sated.
It’s worth looking at how the court approached the application for a preliminary injunction in this particular case. As this is a US case, I will mention the US Court’s approach.
First of all, you have to bear in mind that an application for a preliminary injunction is not a full trial of all the issues. Accordingly, under applicable rules in the US, to obtain a preliminary injunction a party must demonstrate:
1. That it will be irreparably harmed if an injunction is not granted; and
(a) a likelihood of success on the merits; or
(b) sufficiently serious questions going to the merits to make them a fair ground for litigation, and a balance of the hardships tipping decidedly in its favour.
Since the Defendants’ case was based on “fair use”, much of the careful judgment was directed towards whether or not such a defence had any prospect of succeeding. The “fair use” doctrine was codified in section 107 of the US 1976 Copyright Act, which provides that “… the fair use of a copyrighted work… for purposes such as criticism, comment, news reporting, teaching… scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.”
The court looked at all of these in quite some detail. In particular, under the first leg of the “fair use” doctrine, the court examined closely the defendants’ claim that “60 Years Later” is a parody of “Catcher in the Rye”, Holden Caulfield and/or of Salinger. This is a particularly interesting analysis and worth reading in its own right to see how a court assesses whether one work is a parody of another and the difference between parody and satire. Ultimately, however, the court leaned against the defendants on this.
As regards the second factor (the nature of the copyrighted work), the Court held that “there is no question that in this case, the novel The Catcher in the Rye is a “creative expression for public dissemination [that] falls within the core of the copyright’s protective purposes”, and therefore this factor weighed against a finding of fair use.
In assessing the third factor (the amount and substantiality of the portion used in relation to the copyrighted work as a whole), the Court held that the defendants “have taken much more from Salinger’s copyrighted works than is necessary to serve their alleged critical purpose”, and this factor weighed heavily against a finding of fair use.
The court then looked at the fourth factor — the effect of the use upon the potential market for or value of the copyrighted work. Although the court found that “it appears unlikely that 60 Years would undermine the market for Catcher itself”, it held that you also have to take account of the effect on the market for a Catcher sequel or other derivative works, and that 60 Years could substantially harm that market, whether through confusion as to which is the true sequel or companion to Catcher or simply because of reduced novelty or press coverage. Further, even though Salinger himself had made it clear that he had no intention of publishing a sequel or other derivative work of Catcher, the US courts had established that it is the “potential market” for the copyrighted work and its derivatives that has to be examined. The fact that US copyright law specifically gives the copyright owner the exclusive right to authorise the creation of derivative works may have been a significant element here. So the court found that this fourth factor weighed against fair use — “albeit only slightly”.
Ultimately, the court found that the plaintiff, JD Salinger, is likely to succeed on the merits of his copyright claim, and case law established that in such a case irreparable harm may be presumed. Inevitably, therefore, the grant of the preliminary injunction followed as Salinger had met the necessary requirements.
Further developments to look out for:
- The defendants have indicated they will appeal the grant of the preliminary injunction – according to GalleyCat;
- Will the defendants publish outside the US?
- If so, will Salinger sue outside the US?
- And if he did, would he be likely to win?
Depending on the respective parties’ willingness to continue the fight, and availability of money, this one could keep us entertained for years to come.