When J.D. Salinger sued to stop the publication of Swedish author Fredrik Colting’s book 60 Years Later: Coming through the Rye alleging it infringed his copyrights in the 1951 classic The Catcher in the Rye, a federal district court in New York agreed and issued a preliminary injunction banning the publication of Colting’s book. The injunction followed almost automatically from the court’s finding of likely infringement. Along with colleagues at Georgetown and the University of California, Berkeley, we submitted an amicus brief on behalf of the American Library Association, the Association of Research Libraries, the Association of College and Research Libraries, The Organization for Transformative Works and the Right to Write Fund, which explained why injunctions cannot issue so easily; many more factors have to be considered, including the speech rights at stake, and the public interest. We argued that an injunction cannot issue without proof that the plaintiff would suffer irreparable harm. And we argued that in issuing the injunction, the court applied a unduly restrictive standard of “fair use” because the decision centerd on a very narrow conception of “parody.”
Salinger v. Colting, et al.
Julie is a Non-Residential fellow with Stanford CIS. She represents writers, filmmakers, musicians, and others who rely on fair use in creating their works. Julie has represented visual artist Shepard Fairey in copyright litigation against The Associated Press over Fairey’s “Obama Hope” posters, RDR Books in its copyright and Lanham Act dispute with J.K.
Last summer, a federal district court in New York issued a preliminary injunction banning the publication of 60 Years Later - Coming Through The Rye on the ground it represented a likely infringement of JD Salinger's copyrights in Catcher In The Rye. And that was the problem: Under the District Court's analysis, the injunction followed almost automatically from its finding of likely infringement.
About a month ago, a New York District Court issued an order prohibiting the U.S. publication of 60 Years Later - Coming Through The Rye on the ground it represented a likely infringement of JD Salinger's copyrights in Catcher In The Rye. That decision has been appealed to the Second Circuit Court of Appeals, which is reviewing the case on an expedited basis. An injunction banning a book is a big deal.
In two recent decisions concerning copyright’s fair use doctrine, the Second Circuit addressed the lawfulness of incorporating one creative work into a new one. In both Cariou v Prince and Salinger v Colting, US District Judge Deborah Batts enjoined similar activity using nearly identical reasoning. But on appeal, the Second Circuit found fair use in the former and likely infringement in the latter.
We filed an amicus brief on behalf of a group of library associations and others asking the Second Circuit to reverse a lower court’s injunction of the publication of