Opinion: Getting the last word on Holden Caulfield


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I’ve been so distracted by the Greek debt crisis that I missed a ruling last week by the U.S. 2nd Circuit Court of Appeals that has potentially enormous implications for publishers, movie studios and other copyright holders. The appeals panel overturned a federal judge’s ruling that J.D. Salinger (and now, his heirs) was entitled to a preliminary injunction barring the U.S. publication of an unauthorized sequel to ‘Catcher in the Rye.’

Citing the Supreme Court’s ruling in EBay vs. MercExchange, a case involving patent infringement, the appeals panel ruled that courts should not grant injunctions automatically to stop the publication or distribution of works that infringe copyrights. Instead, copyright holders will have to demonstrate that the harm they would suffer if the injunction were not issued could not be remedied through other means, such as monetary damages. The courts must also consider the ‘balance of hardships’ that an injunction (or lack thereof) would inflict on either side, and whether an injunction would serve the public interest.


The ruling may not make a practical difference to the unauthorized ‘Catcher’ sequel, a novel titled ’60 Years Later: Coming Through the Rye.’ The 2nd Circuit left the injunction in place temporarily, giving the lower court time to put new restraints in place. It also stacked the deck in favor of another injunction. In addition to upholding the lower court’s finding that the book’s main character, ‘Mr. C,’ violated Salinger’s copyright over the character Holden Caulfield, the appeals panel rejected the argument by the author, the publisher and some allies of ’60 Years Later’ that the book was a fair use of Salinger’s work.

Jack Lerner, a copyright expert and law professor who leads the USC Intellectual Property and Technology Law Clinic, said he was disappointed that the courts didn’t find the new book to be a fair use. The author didn’t simply do another book about Holden Caulfield; the novel used Caulfield as a way to comment on the relationship between Salinger and his creation. Still, by making it harder for copyright holders to get injunctions, Lerner said, the ruling should make them more willing to strike licensing deals for their content.

Jennifer Urban, director of the Samuelson Law, Technology & Public Policy Clinic at UC Berkeley, said that the ruling ‘removed the possibility of the plaintiffs having so much power at the beginning that the licensing negotiations are heavily tilted toward the plaintiffs.’ That’s been the result with patents since the MercExchange decision, she said, especially in cases involving patent holders whose business is to collect royalties rather than make products.

Let me put that another, less charitable way. The MercExchange decision made life harder for patent trolls to stop manufacturers from bringing innovative products to market, and that’s a good thing.

Urban added that injunctions may have the effect in copyright cases of diminishing speech, which raises public policy concerns. Granted, there can be 1st Amendment issues on both sides; Salinger, for example, asserted a constitutional right not to be forced to speak. But if authors accused of infringement are making fair use of copyrighted works, that’s protected speech, and society has an interest in hearing it.

-- Jon Healey