Catcher Caught in More Legal Maneuvering

May 30, 2010 Tuvyah (Terry) D. Aronoff

Catcher in the Rye fans will be interested in recent litigation regarding the great American coming-of-age novel that has been brewing in the Southern District of New York.

Catcher, is J.D. Salinger’s classic story about a disillusioned teenager named Holden Caulfield who is kicked out of boarding school and then wanders around New York City for a few days with his friends before ultimately returning back home.

In May 2009, without seeking Salinger’s permission, Swedish author Fredrik Colting wrote an unauthorized spin-off entitled “60 Years Later:  Coming Through the Rye.” Already on the shelves in other countries (including Great Britain, where it is labeled on the back cover as a “marvelous sequel to one of our most beloved classics”), 60 Years Later tells the story of 76-year-old Holden Caulfield (referred to in the sequel as “Mr. C.”) who leaves a retirement home, experiences New York City, meets up with old friends and ends up returning to another institution.

Before his death this past January at the age of 91, Salinger (who publicly stated that he had no intention of ever authorizing a sequel to Catcher) sued Colting in the Southern District of New York, asserting claims for copyright infringement and unfair competition.  See Salinger v. Colting, 641 F. Supp. 2d 250, 253 (S.D.N.Y. July 2009) (“Salinger I”).  Salinger also requested a preliminary injunction seeking to stop Colting from publishing, promoting, or selling 60 Years Later in the United States.  Id. at 254.  In filing that suit, Salinger pointed out the many similarities between 60 Years Later and Catcher, including the fact that both novels have a first-person narrative and the fact that Holden Caulfield and Mr. C. share many of the same eccentricities.

Last July, despite Colting’s claim that 60 Years Later “is not, and was never intended to be, a sequel to Catcher,” a federal judge in Manhattan found that Colting had infringed Salinger’s copyright, and blocked publication of Colting’s book in the United States.  See Salinger I, 641 F. Supp. 2d at 269.

Colting subsequently appealed and on April 30, 2010, the Second Circuit Court of Appeals sent the case back to the District Court to determine whether Salinger (now represented by a trust) will actually suffer irreparable harm if Colting’s book is published in the United States.  See Salinger v. Colting, 2010 U.S. App. LEXIS 8956, at *36 (2d Cir. 2010) (“Salinger II”).

The decision opens the door for Colting to try and prove that he is entitled to sell his book in the U.S. even though there are similarities.

That opportunity comes by way of a 2006 U.S. Supreme Court case called eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388, 390 (2006).  In the eBay case, the Supreme Court laid down the ground rules for a court trying to decide whether to issue a court order forcing someone to do something (an “injunction”) rather than just awarding money to one side or the other.  eBay, 547 U.S. at 391.  Even though eBay involved a permanent injunction in a patent case, the Second Circuit saw no reason that it should not apply the same rules to a temporary injunction in a copyright case.  Salinger II, 2010 U.S. App. LEXIS 8956, at *23-24.

The Second Circuit held that its historical approach to deciding cases like Salinger would no longer work in light of the holding announced in eBaySalinger II, at **15, 29-30.

Historically, the Second Circuit would presume that if a plaintiff (like Salinger) could prove copyright infringement then he would also most likely be able to prove irreparable harm.  Salinger II, at *18-19.  In eBay, however, the Supreme Court held that one does not necessarily follow from the other and that there must be an independent analysis of whether, even though there may be copyright infringement, there is going to be enough damage from it to warrant the issuance of a court order such as the one in this case stopping publication of a book.  Id. at *20-23.

Even though the Second Circuit saw “no reason to disturb” the District Court’s conclusion that Salinger’s trust is likely to succeed on the merits of the infringement claim, the Court nevertheless held that after the Supreme Court’s decision in eBay, courts “must not simply presume irreparable harm” in copyright cases.  Salinger II, at *35-36.  Rather, in order to be entitled to a preliminary injunction, “plaintiffs must show that, on the facts of their case, the failure to issue an injunction would actually cause irreparable harm.”  Id. at *35.

And so the case goes back to the United States District Court for the Southern District of New York so that they can apply the new eBay test to the facts of the case.

Tuvyah heads the Commercial practice at SWA, focusing on mergers and acquisitions, general commercial and entertainment law.

Tuvyah can be reached at 646 328 0781 or

This SWA publication is intended for informational purposes and should not be regarded as legal advice. For more information about the issues included in this publication, please contact Tuvyah (Terry) D. Aronoff. The invitation to contact is not to be construed as a solicitation for legal work. Any new attorney/client relationship will be confirmed in writing.