A federal judge has enjoined the publication of a purported meditation on J.D. Salinger’s “The Catcher in the Rye.”
Southern District Judge Deborah Batts yesterday said that “60 Years Later: Coming Through the Rye” by Swedish author Fredrik Colting violated Mr. Salinger’s copyright. She found that Mr. Colting borrowed liberally from “Catcher,” and his work did not amount to a critique or commentary on the original.
Her decision in Salinger v. Colting, 09 Civ. 5095, comes after a June 17 hearing during which the judge appeared deeply skeptical that Mr. Colting’s work should be considered “transformative” and thus exempt from a finding of copyright infringement under the Fair Use Doctrine ( NYLJ June 18).
The Southern District decision will be published Monday.
“Let me be clear,” Judge Batts said at the hearing. “I’m having difficulty seeing it exists at all.”
The 227-page book was billed in Europe, although not in the United States, as a “sequel” to “The Catcher in the Rye.” In “60 Years Later,” Mr. Salinger’s protagonist, Holden Caulfield, is called “Mr. C,” a 76-year-old man looking back on his life. He returns to many of the same locations in New York City that Holden Caulfield haunted after being thrown out of prep school in “The Catcher in the Rye.”
On some 30 pages, in italics, Mr. Colting interjects a writer named “Mr. Salinger,” who discusses the character of “Mr. C” and talks about how he would like to kill him off.
In her 37-page opinion, Judge Batts yesterday rejected Mr. Colting’s argument that his novel is meant to be a meditation on the relationship between an author and his subject.
“To the extent defendants contend that 60 Years and the character of Mr. C. direct parodic comment or criticism at Catcher or Holden Caulfield, as opposed to Salinger himself, the court finds such contentions to be post-hoc rationalizations employed through vague generalizations about the alleged naivete of the original, rather than reasonably perceived parody,” Judge Batts said.
She said it was “hardly parodic to repeat the same exercise in contrast, just because society and the characters have aged.”
Judge Batts said Mr. Colting was “simply rehashing” several of the themes of “The Catcher in the Rye,” including how “Holden’s emotional growth would ultimately be stunted by his unwillingness to compromise his principles or engage with the ‘phonies.’” Similarly, the judge rejected the claim of Mr. Colting and his U.S. publisher, SCB Distributors, that the work was a parody of Mr. Salinger himself.
Mr. Colting had submitted a declaration saying he had “long been fascinated by Salinger and his relationship to Holden Caulfield.”
“I am intrigued by the fact that, after creating Holden and other characters, Salinger has not published a new work in nearly half a century and is almost never seen in public,” he said. “It seems to me that Salinger has become as famous for not wanting to be famous as he has for his writings.”
But the judge, while acknowledging that the addition of the Salinger character by Mr. Colting was “novel,” said “60 Years Later” lacks the “critique and commentary” that would shield the work as a fair use.
The judge also found no transformative use of “Catcher” or the character of Holden Caulfield.
“While 60 Years may, as defendants assert, accentuate and comment upon Holden Caulfield’s naivete, depression, loneliness, absurdity, and inability to grow and mature as a person, because these characteristics were abundant, even central to the narrative of Catcher, this aspect of 60 Years” does not add anything new, she said.
Nor was the use of the Salinger character in “60 Years After” transformative, she said.
She said Mr. Colting’s book “borrows quite extensively from Catcher, both substantively and stylistically” so that, when “combined with the inconsistent use of the transformative element in the character of Salinger, the ratio of the borrowed to the novel is quite high, and its transformative character is diminished.”
It also worked against Mr. Colting’s fair use argument that the work was for profit as opposed to having a nonprofit educational purpose.
Judge Batts found that Mr. Colting borrowed far more than he needed from “Catcher” for his allegedly transformative purpose.
“For example, like Holden, Mr. C. is a frequent liar, constantly complains, is out of shape, has trouble maneuvering in the dark, combs his hair with his hand to one side, wears the same red hunting cap, is obsessed with whether birds migrate in the winter, and likes the feeling of standing still in museums,” she said. “He also loves to use the words ‘goddam,’ ‘phony,’ ‘crumby,’ ‘lousy,’ ‘hell’ and ‘bastard,’ as well as the phrase ‘kills me,’ but does not like the word ‘grand.’”
The judge goes on to detail a host of other similarities between “characters, settings, tone, and plot devices” of the two works
Finally, Judge Batts found that “60 Years” was likely to undermine the market for “Catcher” itself.
A preliminary injunction issued by Judge Batts is immediately appealable to the U.S. Court of Appeals for the Second Circuit.
The reclusive Mr. Salinger was represented by Marcia B. Paul of Davis Wright Tremaine. She declined comment.
Mr. Colting was represented by Edward H. Rosenthal of Frankfurt Kurnit Klein & Selz.