Salinger v. Colting, 09 civ 5095-DAB (S.D.N.Y. 2009)

The big news in copyright from the holiday weekend was a fair use decision issued in the Southern District of New York. Author J.D. Salinger alleged that a book 60 Years Later: Coming Through the Rye infringed his celebrated work The Catcher in the Rye. In the motion at bar, Salinger sought to preliminarily enjoin the Defendant from the distribution and promotion of its work. The Court found that Salinger was likely to succeed on the merits of his copyright claim and granted the injunction.

On whether 60 Years was a parody of The Catcher

The Court found that 60 Years didn’t contain a reasonably perceivable parodic character because its “plain purpose [was] not to expose Holden Caufield’s disconnectedness, absurdity, and ridiculousness, but rather to satisfy Holden’s fans’ passion for Holden Caufield’s disconnectedness, absurdity, and ridiculousness, which Catcher has raised into the realm of protectable creative expression.”

On whether 60 Years was a Parody of Salinger

The Defendant incorporated J.D. Salinger, the author himself, as a character in 60 Years. The Defendant claimed that the inclusion of the character parodied Salinger, and by proxy, Catcher in the Rye. The Court ostensibly drew a hard line between commenting on an author’s preexisting works and commenting on the author himself:

Campbell and its progeny define the limits of parody to include only those elements that criticize or comment upon the source author’s works, rather than the author himself. Campbell at 580 (“the hear of any parodist’s claim to quote from existing material, is the use of some of the prior author’s composition to create a new one that, at least in part, on that author’s works.”) (emphasis added); id. at 597 (Kennedy, J., concurring); (“. . . parody may qualify only as fair use only if it draws upon the original composition to make humorous or iconic [sic] commentary about that same composition.”) (emphasis added); see also, Suntrust Bank, 268 F.3d at 1268 (“For purposes of our fair use analysis, we will treat a work as a parody if its aim is to comment upon or criticize a prior work . . . “) (emphasis added); Dr. Seuss Enterprise, L.P. v. Penguin Books USA, Inc., 924 F.Supp. 1559, 1569 (S.D. Cal. 1996) (“Courts have allowed claims only where there was a discernable direct comment on the original.”) (emphasis added.)

The Court found that the Defendant’s use of Salinger as a character in order to criticize the author’s alleged propensity to exercise “iron-clad control over his intellectual property, refusing to allow others to adapt any of his characters in other media,” was at most a tool with which to criticize and comment on the author, J.D. Salinger and his idiosyncrasies.”  It did not, the Court stated, “direct the criticism toward Catcher and Caufield themselves, and thus is not an example of parody.”

17 U.S.C. 107 factors

(1) Purpose and character: The Court found that the work was commercial in nature.

(2) Nature of the copyrighted work: The Court found that The Catcher in the Rye is the type of work that “falls within the core of copyright law’s protective purpose.”

(3) Amount and substantiality: The Court found that the Defendants had taken “well more from Catcher, in both substance and style, than is necessary for the alleged transformative purpose.”

(4) Effect of the use upon the potential market value of the Copyrighted Work: The Court found that it was unlikely that the Defendant’s work would harm the market for Catcher in the Rye, but that it could harm the potential market for a Catcher sequel or other derivative work.

Comments

I find myself disappointed with the hard-line distinction the Court drew between criticizing an author, and criticizing an author’s works. First and foremost this is a false division. Yes, a work must comment on a preexisting work to be considered a parody. But surely a work that comments on a preexising work’s author is also commenting by proxy on the preexisting work itself.

Indeed, from a policy perspective, I think the rationale for finding a work noninfringing is often stronger if it comments on the author of a preexisting work, rather than if it only comments on the works produced by the author: think unscrupulous business, labor, or environmental practices. If courts were to adopt the hard-line distinction between an author and an author’s works, a parody that uses a preexisting work to lampoon the author’s questionable business practices would be infringing.

The theoretical and policy rationales aside, the distinction between commenting on an author and an author’s works strikes me as inconsistent with the underpinnings of Souter’s opinion in Campbell. The majority opinion stands for many, many things, but perhaps most important is the idea that fair use is a common law analysis not to be dictated by hard and fast rules. The majority opinion goes as far as to state that while parody and satire should be treated differently, satire can also be a non-infringing fair use under certain circumstances.

The distinction between an author and an author’s works strikes me as the type of rule that Justice Souter tried hard to eliminate; the type of rule that is formulated in circuits that see many copyright cases because it’s convenient, and then is later misapplied in circuits that don’t see many copyright cases.