Asserting that Colting’s novel “60 Years Later: Coming Through the Rye” is a rip-off of Salinger’s 1951 Classic, “The Catcher in the Rye,” Salinger is suing to permanently enjoin the future production and dissemination of Colting’s novel as well as to destroy any current issues available. Colting disputes this allegation, claiming that it is “a complex and undeniably transformative exposition about one of our nation’s most famous authors, J.D. Salinger, and his best known creation, Holden Caulfield.” Sounds like a sequel to me.

To be fair, this is not Salinger’s first legal rodeo. In 1982, he sued a man who allegedly tried to sell a phony interview to a national magazine. In 1987, he sued to prevent an unauthorized biography that quoted from Salinger’s unpublished letters. In 1988, Salinger went and got himself a copyright on those letters. In 2003, Salinger halted a BBC television production on Catcher. Seriously folks, don’t mess with this guy.

As I alluded to in a previous post, there is some basis for a fictional character to be copyrighted.

Of course, Colting’s attorneys disagree. Thus, there is a possibility that our buddy Holden Caulfield could have some protection. This does not end the analysis.

Rather, there is a copyright exception called “fair use.” There are four factors in determining fair use: (1) the purpose and nature of the use; (2) the nature of the copyright work; (3) the amount and substantiality of the taking; and (4) the effect upon the potential market for or value of the copyrighted work. Parody falls somewhere within the first factor. To be clear, parody does not necessarily equate to an SNL skit. For example, the main character “Mr. C” is apparently some curmudgeon old man (think, “Up”). Thus, Mr. C could be construed as a parody of Holden Caulfield because he takes a different spin on a known entity.

According to Colting, the intent is to show “us that the qualities that appealed to so many in a sixteen-year-old boy are not so admirable in a 76-year-old man…[.]” Essentially, Colting is conveying that while Holden Caulfield may have been something special for his age, if he kept up his attitude he would not have lived a happy life. Further, Colting asserts that Salinger has admitted that much of Catcher is autobiographical, thus, much of Colting’s work is also an essay on Salinger who himself has become quite the misanthrope.

Of course, parody has its limit. One cannot simply change a word around, make a commercial and call it protected parody. For example, in DC Comics, Inc. v. Crazy Eddie, Inc., a discount store made a tv commercial stating, “Look! … It’s a bird! … It’s a plane! … It’s Crazy Eddie!”. DC Comics, copyright holders of Superman, were less than thrilled and sued. The court found the commercial represented a “substantial taking” infringing on plaintiff’s copyrighted television productions.

On top of this whole mess is the public policy considerations that Catcher has been out for quite some time. Despite his claim of unfair competition, Salinger has made no indication that he is intending to make a sequel. The work is a staple in most high school English class syllabi. And Holting’s book is focused more on a theme (uncopyrightable) than a plot (copyrightable). Holting’s book contends that we may all value certain attributes of a character, but such valuation should have its limits. Personally, I think Colting’s assertion that this is a not a sequel is a bold-faced lie in order to protect his you-know-what. However, absent evidence that Colting has lifted key storylines from the original, shouldn’t we be promoting such commentary?

While this mess is being sorted out, a judge has issued a temporary injunction on the production of the book. This of course means that if you somehow managed to get yours paws on an early copy, get that bad boy on E-Bay pronto. Hey, you might even get your very own personalized note from JD Salinger. You can’t imagine how many interviewers would be jealous.