Case 1:09-cv-05095-DAB Document 30 Filed 07/01/09 Page 1 of 37
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`Case 1:O9—cv—O5095—DAB Document 30 Filed 07/01/09 Page 1 of 37
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`---------------------------------- - -x
`J.D. SALINGER,
`individually and as
`TRUSTEE of the J.D. SALINGER
`
`LITERARY TRUST:
`
`
`é
`;§DQ€UI~¢§EW1‘
`-'t
`-
`7;
`
`
`
`
`"'"
`
`1
`
`1'?! L.
`
`
`
`Plaintiff,
`
`-against-
`
`09 Civ. 5095 (DAB)
`MEMORANDUM & ORDER
`
`FREDRIK COLTING, writing under the name
`JOHN DAVID CALIFORNIA, WINDUPBIRD
`
`PUBLISHING LTD., NICOTEXT A.B., and ABP,
`
`INC. d/b/a SCB DISTRIBUTORS INC.
`
`Defendants.
`. _ . . _ _ _ _ _ _ _ _ _ _ _ _ _ . . . _ _ _ . _ _ . _ . _ _ _ _ _ __x
`
`DEBORAH A. BATTS, United States District Judge.
`
`Plaintiff J.D. Salinger brings suit against Defendants
`
`Fredrik Colting, writing under the name John David California,
`
`
`
`Case 1:O9—cv—O5095—DAB Document 30 Filed 07/01/09 Page 1 of 37
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`---------------------------------- - -x
`J.D. SALINGER,
`individually and as
`TRUSTEE of the J.D. SALINGER
`
`LITERARY TRUST:
`
`
`é
`;§DQ€UI~¢§EW1‘
`-'t
`-
`7;
`
`
`
`
`"'"
`
`1
`
`1'?! L.
`
`
`
`Plaintiff,
`
`-against-
`
`09 Civ. 5095 (DAB)
`MEMORANDUM & ORDER
`
`FREDRIK COLTING, writing under the name
`JOHN DAVID CALIFORNIA, WINDUPBIRD
`
`PUBLISHING LTD., NICOTEXT A.B., and ABP,
`
`INC. d/b/a SCB DISTRIBUTORS INC.
`
`Defendants.
`. _ . . _ _ _ _ _ _ _ _ _ _ _ _ _ . . . _ _ _ . _ _ . _ . _ _ _ _ _ __x
`
`DEBORAH A. BATTS, United States District Judge.
`
`Plaintiff J.D. Salinger brings suit against Defendants
`
`Fredrik Colting, writing under the name John David California,
`
`
`
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`
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`Case 1:O9—cv—O5095—DAB Document 30 Filed 07/01/09 Page 2 of 37
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`I.
`
`INTRODUCTION
`
`As set forth on the record of June 17, 2009, and for the
`
`reasons stated therein,
`
`the Court found that Plaintiff possesses
`
`a valid Copyright in the novel The Catcher in the Rye,
`
`that the
`
`character of Holden Caulfield (“Holden" or “Cau1fie1d”)
`
`is
`
`sufficiently delineated so that a claim for infringement will
`
`lie.
`
`2 Nimmer on Copyright
`
`§ 2.12 (2009)
`
`(“[I]n those cases
`
`recognizing such protection,
`
`the character appropriated was
`
`distinctively delineated in the plaintiff's work.").
`
`Additionally,
`
`for the reasons stated on the record of June 17,
`
`2009,
`
`the Court found that the Plaintiff had access to Catcher
`
`
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`similar where the ordinary observer, unless he set out to detect
`
`the disparities, would be disposed to overlook them, and regard
`
`the aesthetic appeal of the two works as the same.")
`
`(internal
`
`quotations omitted).
`
`The Court now addresses Defendants’ claim that their novel
`
`60 Years and its protagonist Mr. C constitute fair use of
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`Plaintiff's copyrighted work under 17 U.S.C. §§ 107(1)-(4).
`
`The
`
`Court bases its analysis on the oral arguments of June 17, 2009
`
`and the parties’ submissions.1
`
`II. DISCUSSION
`
`A.
`
`The Preliminary Injunction Standard
`
`
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`B.
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`The Fair Use Doctrine
`
`From the infancy of copyright protection,
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`some opportunity
`
`for fair use of copyrighted materials has been thought necessary
`
`to fulfill copyright's very purpose,
`
`‘[t]o promote the Progress
`
`of Science and useful Arts....'" Campbell v. Acuff-Rose Music,
`
`Inc., 510 U.S. 569, 575 (1994)
`
`(quoting U.S. Const., Art. I,
`
`§ 8,
`
`cl. 8). At the Constitutional level, while the “Copyright Clause
`
`and the First Amendment
`
`[are]
`
`intuitively in conflict,
`
`[they]
`
`were drafted to work together to prevent censorship" such that
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`“the balance between the First Amendment and copyright is
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`preserved,
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`in part, by the idea/expression dichotomy and the
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`
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`Books, 575 F.Supp.2d 513, 540 (S.D.N.Y. 2008)
`
`(“At stake in this
`
`case are the incentive to create original works which copyright
`
`protection fosters and the freedom to produce secondary works
`
`which monopoly protection of copyright stifles — both interests
`
`benefit the public.")(guoting Pierre N. Leval, Toward a Fair Use
`
`Standard, 103 Harv. L. Rev. 1105, 1109 (1990)
`
`(hereinafter
`
`“Leval"))
`
`(noting that although “the monopoly created by
`
`copyright
`
`.
`
`.
`
`.
`
`rewards the individual author in order to benefit
`
`the public[,]" on the other hand “the monopoly protection of
`
`intellectual property that impeded referential analysis and the
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`development of new ideas out of old would strangle the creative
`
`process.")
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`
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`Case 1:O9—cv—O5095—DAB Document 30 Filed 07/01/09 Page 6 of 37
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`(4)
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`the effect of
`
`the use upon the potential market for or
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`value of the copyrighted work.
`
`17 U.S.C.
`
`§ 107.
`
`In applying the fair use doctrine “[t]he task is not to be
`
`simplified with bright-line rules, for the statute,
`
`like the
`
`doctrine it recognizes, calls for case-by—case analysis" and “all
`
`[of the four factors] are to be explored, and the results weighed
`
`together in light of the purposes of copyright." Campbell, 510
`
`U.S. at 577-78.
`
`C. Applying the Four Factor Analysis to 60 Years
`
`1. The Purpose and Character of the Use
`
`
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`within the confines of copyright, and the more transformative the
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`new work,
`
`the less will be the significance of other factors,
`
`like commercialism,
`
`that may weigh against a finding of fair
`
`use."
`
`EQL
`
`(giting Sony Corp. of America v. Universal City
`
`Studios, Inc., 464 U.S. 417, 478-80 (U.S. 1984)
`
`(Blackmun, J.,
`
`dissenting)).
`
`“The first fair use factor calls for a careful
`
`evaluation whether the particular quotation is of the
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`transformative type that advances knowledge and the progress of
`
`the arts or whether it merely repackages, free riding on
`
`another's creations.
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`If a quotation of a copyrighted matter
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`reveals no transformative purpose, fair use should perhaps be
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`rejected without further inquiry into other factors. Factor One
`
`
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`60 Years contains parodic elements that are transformative in
`
`nature.
`
`(Defs’ Mem. of Law, 16-19).
`
`i. The Satire[Parody Distinction
`
`In Campbell,
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`the Supreme Court held that parody, although
`
`not included within the text of § 107,
`
`is a form of comment or
`
`criticism that may have a transformative purpose. Campbell, 510
`
`U.S. at 579. Unlike satire, which critiques and comments on
`
`aspects of society more broadly, parody sharpens its knives for
`
`the very work from which it borrows.
`
`gge id; at 580-81, 581
`
`n.15. Thus, whereas “parody needs to mimic an original to make
`
`its point, and so has some claim to use the creation of its
`
`victim's .
`
`.
`
`.
`
`imagination,
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`[
`
`] satire can stand on its own two
`
`
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`modern society,
`
`the copied work must be, at least in part, an
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`object of the parody.")
`
`Within the domain of Copyright
`
`law, “the heart of any
`
`parodist’s claim to quote from existing material,
`
`is the use of
`
`some elements of a prior author's composition to create a new one
`
`that, at least in part, comments on that author's works."
`
`Campbell, 510 U.S. at 580. “If, on the contrary,
`
`the commentary
`
`has no critical bearing on the substance or style of the original
`
`composition, which the alleged infringer merely uses to get
`
`attention or to avoid the drudgery in working up something fresh,
`
`the claim to fairness in borrowing from another's work diminishes
`
`accordingly (if it does not vanish).
`
`.
`
`.”
`
`gdp at 581.
`
`
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`on that author's wgrk§.)" (emphasis added);
`
`id. at 597 (Kennedy,
`
`J-, concurring)
`
`(“.
`
`.
`
`. parody may qualify as fair use only if it
`
`draws upon the original composition to make humorous or iconic
`
`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. Suess Enterprises, L.P. v. Penguin Books USA, Inc., 924
`
`F.Supp. 1559, 1569 (S.D. Cal. 1996)
`
`(“Courts have allowed parody
`
`claims only where there was a discernable direct comment on the
`
`original.")
`
`(emphasis added).
`
`In Suntrust Bank v. Houghton Mifflin Company, 268 F.3d 1257,
`
`
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`IIIIIIIIIIIIIIIIIIIIIIIIIIIIIII-"""""""""'"""""“"'-__”—"”
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`However,
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`the factual finding of parody is what truly sets
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`IEQQ apart from 60 Years because the Court here cannot make that
`
`same factual finding. As the Suntrust court stated:
`
`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 by appropriating elements of the
`original in creating a new artistic, as opposed to
`scholarly or journalistic, work. Under this
`
`definition,
`
`the parodic character of TWDG is clear.
`
`TWDG is not a general commentary upon the Civil—War-era
`American South, but a specific criticism of and
`rejoinder to the depiction of slavery and the
`relationships between blacks and whites in GWTW.
`
`268 F.3d at 1268-69.
`
`60 Years, however, contains no reasonably
`
`discernable rejoinder or specific criticism of any character or
`
`
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`First, Colting's assertion that his purpose in writing
`
`Catcher was to “critically examin[e]
`
`the character Holden, and
`
`his presentation in Catcher as an authentic and admirable (maybe
`
`even heroic)
`
`figure" is problematic and lacking in credibility.
`
`(Colting Decl.,
`
`fl 18.); see also (Woodmansee Decl.,
`
`fl 13)
`
`(“Readers familiar with [Catcher] will anticipate the same
`
`laconic observations and reflections they associate with Holden
`
`Caulfield. What do they get from the 76 year old C? They get
`
`much the same kinds of observations and reflections, but coming
`
`from a 76 year old and applied to a world much changed in the 60
`
`intervening years, such observations and reflections fall flat.
`
`They reveal a character whose development was arrested at 16, who
`
`
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` C
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`version of the character.
`
`(Colting Decl.,
`
`flfl 18, 21).
`
`In fact,
`
`it was these very characteristics that led Caulfield to leave or
`
`be expelled from three boarding schools,
`
`to wander the streets of
`
`New York City alone for several days,
`
`to lack any close friends
`
`other than his younger sister Phoebe, and ultimately to become a
`
`patient in a psychiatric hospital. Hence,
`
`to the extent Colting
`
`claims to augment
`
`the purported portrait of Caulfield as a “free-
`
`thinking, authentic and untainted youth" and “impeccable judge of
`
`the people around him" displayed in Catcher by “show[ing]
`
`the
`
`effects of Holden's uncompromising world view," (Def’s Mem. of
`
`Law, 18),
`
`those effects were already thoroughly depicted and
`
`apparent in Salinger’s own narrative about Caulfield.
`
`See, e.g.,
`
`
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`[him] even more depressed when she said that")
`
`(emphasis
`
`original);
`
`(Catcher, at 186)
`
`(Mr. Antolini, telling Holden that
`
`“I have a feeling that you're riding for some kind of a terrible,
`
`terrible fall”);
`
`(Catcher, at 189)
`
`(Mr. Antolini,
`
`telling Holden
`
`that “[a]mong other things, you'll find that you're not the first
`
`person who was ever confused and frightened and even sickened by
`
`human behavior");
`
`(Catcher, at 194)
`
`(“So I sat up.
`
`I still had
`
`that headache.
`
`It was even worse. And I think I was more
`
`depressed than I ever was in my whole life.").
`
`In fact, it can be argued that the contrast between Holden's
`
`authentic but critical and rebellious nature and his tendency
`
`toward depressive alienation is one of the key themes of Catcher.
`
`
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`in a manner that is nearly identical to that which Salinger did
`
`decades ago, and thus is anything but parodic in this regard.
`
`Furthermore, it is equally apparent that J.D. Salinger was
`
`aware of, and indeed emphasized the fact that Holden's
`
`uncompromising authenticity was at least partially responsible
`
`for his failure to ‘grow up’ and become a fully-functional adult
`
`with the capacity for mature relationships.
`
`See, e.g.,
`
`(Catcher,
`
`at 9)
`
`(“I was sixteen then, and I'm seventeen now, and sometimes
`
`I act like I'm about thirteen .
`
`.
`
`. Everybody says that,
`
`especially my father.”);
`
`(Catcher, at 132-34)
`
`(Holden, describing
`
`to Sally Hayes his plan for the two of them to run away to
`
`Vermont, get married and live in a cabin, but then causing her to
`
`
`
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` e
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`Colting and Defense experts contend that 60 Years is attempting
`
`to accentuate how Holden's emotional growth would ultimately be
`
`stunted by his unwillingness to compromise his principles or
`
`engage with ‘the phonies,’ they were again simply rehashing one
`
`of the critical extant themes of Catcher.
`
`While it is true that an artist or author “need not label
`
`their whole [work]
`
`.
`
`.
`
`. a parody in order to claim fair use
`
`protection," Campbell, 510 U.S. at 583 n. 17, it is equally true
`
`that “courts .
`
`.
`
`. must take care to ensure that not just any
`
`commercial takeoff is rationalized post hoc as a parody."
`
`Campbell, 510 U.S. at 600 (Kennedy, J., concurring).3 For the
`
`
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`foregoing reasons, 60 Years’ plain purpose is not to expose
`
`Holden Caulfield’s disconnectedness, absurdity, and
`
`ridiculousness, but rather to satisfy Holden's fans’ passion for
`
`Holden Caulfield’s disconnectedness, absurdity, and
`
`ridiculousness, which Catcher has “elevated into the realm of
`
`protectable creative expression." Castle Rock, 150 F.3d at 143.
`
`Accordingly,
`
`the Court finds that 60 Years contains no
`
`reasonably perceived parodic character as to Catcher and Holden
`
`Caulfield.
`
`iii. Alleged Parody of Salinger
`
`Defendants also contend that 60 Years is a critique of
`
`
`
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`of Law, 19)
`
`(“[60 Years] also critically explores the
`
`relationship between Salinger and his beloved character,
`
`Holden."); see also (Colting Decl.
`
`fl 7)
`
`(“Like many people,
`
`I
`
`have 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.
`
`It seems to me that Salinger has become as famous for
`
`wanting not to be famous as he has for his writings.
`
`He has
`
`stayed in the public eye by claiming to have withdrawn from
`
`it.");
`
`(Woodmansee Decl.
`
`fl 8)
`
`(“[60 Years] seeks to demonstrate
`
`that in writing [Catcher] J.D. Salinger was acting out of
`
`
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`character,
`
`in order to criticize his reclusive nature and alleged
`
`desire to exercise “iron-clad control over his intellectual
`
`property, refusing to allow others to adapt any of his characters
`
`or stories in other media,” (Colting Decl.
`
`fl 7),
`
`is at most, a
`
`tool with which to criticize and comment upon the author, J.D.
`
`Salinger, and his supposed idiosyncracies.
`
`It does not, however,
`
`direct that criticism toward Catcher and Caulfield themselves,
`
`and thus is not an example of parody.
`
`Having determined that 60 Years lacks transformative parodic
`
`character,
`
`the Court now examines whether Defendants’ novel
`
`contains other forms of transformative content.
`
`
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`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, and perhaps even central to the
`
`narrative of Catcher,
`
`this aspect of 60 Years does not “add[]
`
`something new, with a further purpose or different character,
`
`altering the first with new expression, meaning, or message."
`
`Campbell, 510 U.S. at 579 (internal quotations and citations
`
`omitted).
`
`Nor do the mere facts that Holden Caulfield's character is
`
`60 years older, and the novel
`
`takes place in the present day make
`
`60 Years ‘transformative.’
`
`As the Second Circuit clearly noted
`
`
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`injected Salinger into this novel does have some transformative
`
`value. Some. Limited.”).
`
`At most, however,
`
`this device utilizes
`
`Qatghgr and the characters of Holden Caulfield and Salinger as
`
`tools with which to criticize and comment upon the author, J.D.
`
`Salinger, and his supposed idiosyncracies, rather than on the
`
`work itself.
`
`Furthermore,
`
`the non—parodic,
`
`transformative aspect of
`
`Salinger the character is limited. First,
`
`the admissions5 by
`
`Defendants’ as to the character and purpose of 60 Years as a
`
`sequel to a beloved classic belies any claim that this critique
`
`of J.D. Salinger and his behavior was the primary purpose of the
`
`novel.
`
`It is simply not credible for Defendant Colting to assert
`
`
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` s
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`value," the “transformative character of [that work]
`
`is
`
` _;__
`diminished.” Warner Bros. Entertainment Inc. v. RDR Books
`and
`
`QQ§§_l;;Q, 575 F.Supp.2d 513, 544 (S.D.N.Y. 2008)(citing Bill
`
`Graham Archives v. Dorlin Kindersle Ltd., 448 F.3d 605 (2d Cir.
`
`2006)).
`
`As noted further,
`
`infra § (II)(C)(3), 60 Years borrows quite
`
`extensively from Catcher, both substantively and stylistically,
`
`such that, when combined with the inconsistent use of the
`
`transformative element of the character of Salinger,
`
`the ratio of
`
`the borrowed to the novel elements is quite high, and its
`
`transformative character is diminished.
`
`_§g Suntrust Bank, 268
`
`F.3d at 1280 (Marcus, J., concurring)(finding the issue of
`
`
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`whether it constitutes fair use will depend heavily on the
`
`remaining factors.
`
`vi. Commercial Nature
`
`The other prong of the first factor of the § 107 test asks
`
`whether the otherwise infringing work “serves a commercial
`
`purpose or nonprofit educational purpose." Suntrust Bank, 268
`
`F.3d at 1269 (citing § 107(1)). Here, Defendants do not contest
`
`that 60 Years is to be sold for profit, and therefore this prong
`
`of the first factor weighs against a finding of fair use.
`
`2. The Nature of the Copyrighted Work
`
`
`
`Case 1:09-cv-05095-DAB Document 30 Filed 07/01/09 Page 24 of 37
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`
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`Case 1:O9—cv—O5095—DAB Document 30 Filed 07/01/09 Page 24 of 37
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`emerged “in the decisions evaluating the second factor [is]
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`whether the work is expressive or creative, such as a work of
`
`fiction, or more factual, with a greater leeway being allowed to
`
`a claim of fair use where the work is factual or informational."
`
`2 Abrams, The Law of Copyright,
`
`S 15:52 (2006).
`
`Here there is no question that in this case,
`
`the novel The
`
`Catcher in the Rye is a “creative expression for public
`
`dissemination [that] falls within the core of the copyright's
`
`protective purposes." Campbell, 510 U.S. at 586. Consequently,
`
`this factor weighs against a finding of fair use.
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`3. The Amount and Substantiality of the Portion Used in
`
`
`
`Case 1:09-cv-05095-DAB Document 30 Filed 07/01/09 Page 25 of 37
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`
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`Case 1:O9—cv—O5095—DAB Document 30 Filed 07/01/09 Page 25 of 37
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`than is necessary for the alleged transformative purpose of
`
`criticizing Salinger and his attitudes and behavior. Most
`
`notably, Defendants have utilized the character of Holden
`
`Caulfield,
`
`reanimated as the elderly Mr. C, as the primary
`
`protagonist of 60 Years. Mr. C has similar or identical
`
`thoughts, memories, and personality traits to Caulfield, often
`
`using precisely the same or only slightly modified language from
`
`that used by Caulfield in Catcher, and has the same friends and
`
`family as Caulfield.
`
`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
`
`
`
`Case 1:09-cv-05095-DAB Document 30 Filed 07/01/09 Page 26 of 37
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`
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`Case 1:O9—cv—O5095—DAB Document 30 Filed 07/01/09 Page 26 of 37
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`enough of that original to make the object of its critical wit
`
`recognizable." Campbell, 510 U.S. at 588. However, for the non-
`
`parodic purpose of commenting upon Salinger, rather than his
`
`work, it was unnecessary for Colting to use the same protagonist
`
`with repeated and extensive detail and allusion to the original
`
`work.
`
`In addition to the use of Caulfield as protagonist, 60 Years
`
`depends upon similar and sometimes nearly identical supporting
`
`characters, settings,
`
`tone, and plot devices to create a
`
`narrative that largely mirrors that of Catcher.
`
`For example,
`
`both Holden and Mr. C have a sister named Phoebe who “kills
`
`[them]” and is their only real friend, an older brother named
`
`
`
`Case 1:09-cv-05095-DAB Document 30 Filed 07/01/09 Page 27 of 37
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` 6
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`Case 1:O9—cv—O5095—DAB Document 30 Filed 07/01/09 Page 27 of 37
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`You old pigfucker, he says .
`
`.
`
`.
`
`." (60 Years, at 90-91.)
`
`Again, Stradlater screams “[y]ou old pigfucker!" at Mr. C.
`
`(60
`
`Years, at 92.)
`
`In both novels,
`
`the protagonist nearly has sex but
`
`ultimately decides not to, finds himself drawn to Central Park,
`
`has a huge breakfast, which is unusual for him, ponders where the
`
`ducks go during the winter when the ice freezes, stands on a hill
`
`next to a cannon watching a sporting competition, and gets
`
`punched in the shoulder by Stradlater.
`
`(Paul Aff., Ex. C, Ch.1,
`
`2-3, 5, 7, 11-12, 16.) Both characters are disgusted by the
`
`thought of Mr. Spencer's wearing a robe that exposes his hairy
`
`chest, and both reference the film The 39 Steps.
`
`(Paul Aff., Ex.
`
`
`
`Case 1:09-cv-05095-DAB Document 30 Filed 07/01/09 Page 28 of 37
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`
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`Case 1:O9—cv—O5095—DAB Document 30 Filed 07/01/09 Page 28 of 37
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`to live quite near us in Maine-this is, years ago.
`Anyway, what happened was, one day Bobby and I were
`going over to Lake Sedebego on our bikes. We were
`going to take our lunches and all, and our BB guns-we
`were kids and all, and we thought we could shoot
`something without BB guns. Anyway, Allie heard us
`talking about it, and he wanted to go, and I wouldn't
`let him.
`I told him he was a child.
`So once in a
`
`I keep saying to
`while, now, when I get very depressed,
`him,
`‘Okay. Go home and get your bike and meet me in
`front of Bobby's house. Hurry up.’ It wasn't that I
`didn't use to take him with me when I went somewhere.
`
`He didn't get sore
`I didn't.
`I did. But that one day,
`about it-he never got sore about anything-but I keep
`thinking about it anyway, when I get very depressed.
`
`(Catcher, at 98-99.)
`
`In 60 Years, Mr. C relates that:
`
`Allie died a long time ago and the thing about him was
`that you had to love him.
`I'm not kidding, everyone
`
`did.
`
`Even though he tried to latch on when we were
`
`riding our bikes down to the old cemetery, or going
`
`treasure hunting behind Leeman's Cove and was left
`
`
`
`Case 1:09-cv-05095-DAB Document 30 Filed 07/01/09 Page 29 of 37
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`Case 1:O9—cv—O5095—DAB Document 30 Filed 07/01/09 Page 29 of 37
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`(Catcher, at 173)
`
`(emphasis added).
`
`In 60 Years, Mr. C
`
`narrates:
`
`I could listen to kids screaming and laughing all day.
`I close my eyes and picture them running after each
`
`other. So much energy
`
`I think about
`the park.
`I can actually feel the park in
`my veins.
`I bet even my blood is green.
`Suddenly,
`without thinking, my legs push the bench away and I
`
`find myself standing up .
`
`.
`
`.
`
`. At the very same moment
`
`I stand up the screaming is cut off and I open my eyes
`wide and see something in the corner, a red little dot,
`
`and all I have time to do is lift my arms up with my
`palms facing the sky.
`
`A red bundle lands in my arms with a soft thud
`
`Something in my chest moves and as the leaf falls from
`
`my face a tiny little face looks up at me, he looks
`
`more surprised than scared, and before everything
`
`becomes black I get a look at his straw blond hair and
`
`
`
`Case 1:09-cv-05095-DAB Document 30 Filed 07/01/09 Page 30 of 37
`
`
`
`Case 1:O9—cv—O5095—DAB Document 30 Filed 07/01/09 Page 30 of 37
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`It's so sudden. One moment it's a wall all around me
`
`. There's no more field,
`.
`and the next it's gone .
`just wide open space.
`I'm falling forever,
`tumbling
`through empty space and I don't know what's up and
`what's down
`
`There's a hollow thud when I land .
`outstretched and my face is old .
`.
`
`. My arms are
`.
`.
`. and when I look
`
`up I see myself holding myself.
`
`(60 Years, at 271-73.)
`
`Then, a few pages later at the end of the novel, Mr. C reunites
`with his son:
`
`I take my son's hand and look him straight in the eyes
`It's a pretty hard life, you know.
`Sometimes
`
`you end up feeling crummy no matter what, but you can
`never give in to that crumminess. Never ever.
`
`
`
`Case 1:09-cv-05095-DAB Document 30 Filed 07/01/09 Page 31 of 37
`
`
`
`Case 1:O9—cv—O5095—DAB Document 30 Filed 07/01/09 Page 31 of 37
`
`the new elements" in 60 Years is unnecessarily high.
`
`ggg
`
`§gnt;u§t_§§n5, 268 F.3d at 1280 (Marcus, J., concurring)
`
`(finding
`
`the issue of transformative character to cut “decisively in
`
`[Defendant's]
`
`favor" where the ratio of “the borrowed and the new
`
`elements” is “very low, and the incongruity between them wide.")
`
`Finally, both narratives are told from the first-person
`
`point of view of a sarcastic, often uncouth protagonist who
`
`relies heavily on slang, euphemisms, and colloquialisms, makes
`
`constant digression and asides, refers to readers in the second
`
`person, constantly assures the reader that he is being honest and
`
`that he is giving them the truth.
`
`(Paul Aff., Ex. C, Ch.2, 23-29,
`
`31-32.)
`
`
`
`Case 1:09-cv-05095-DAB Document 30 Filed 07/01/09 Page 32 of 37
`
`
`
`Case 1:O9—cv—O5095—DAB Document 30 Filed 07/01/09 Page 32 of 37
`
`(emphasis original). Here, Colting does not use a change in
`
`style to reinforce any parodic or other transformative purpose,
`
`but
`
`to the contrary, utilizes a very similar style with the
`
`effect of emphasizing the similarities between 60 Years and
`
`Catcher, rather than casting a new, contrary light upon the
`
`latter.
`
`Consequently, while Defendants are correct that they “have a
`
`right to be mean to Mr. Salinger," among other reasons because
`
`“Mr. Salinger is not going to authorize somebody to write a book
`
`to be mean about him," (Transcript, at 56),
`
`in serving that
`
`purpose they do not have the right to take more than what is
`
`necessary from Salinger’s own copyrighted work in order to evoke
`
`
`
`Case 1:09-cv-05095-DAB Document 30 Filed 07/01/09 Page 33 of 37
`
`
`
`Case 1:O9—cv—O5095—DAB Document 30 Filed 07/01/09 Page 33 of 37
`
`market for the original.”
`
`Cam bell, 510 U.S. at 590 (internal
`
`quotations omitted).
`
`The inquiry “must take account not only of
`
`harm to the original but also of harm to the market for
`
`derivative works."
`
`Id. Harm to the market weighs against a
`
`finding of fair use “because the licensing of derivatives is an
`
`important economic incentive to the creation of originals." Lg;
`
`at 593.
`
`“Potential derivative uses include only those that
`
`creators of original works would in general develop or license
`
`others to develop." Warner Bros. Entertainment, Inc., 575
`
`F.Supp. at 549 (quoting Campbell, 510 U.S. at 592)
`
`(internal
`
`quotation marks omitted)
`
`(emphasis added).
`
`Here, whether Defendants term 60 Years a sequel or not,
`
`the
`
`
`
`Case 1:09-cv-05095-DAB Document 30 Filed 07/01/09 Page 34 of 37
`
`Case 1:O9—cv—O5095—DAB Document 30 Filed 07/01/09 Page 34 of 37
`
`F.3d 1107, 1112 (9th Cir. 1998)
`
`(noting that “a copyright owner
`
`holds the right to create sequels").
`
`Defendant asserts that there is no evidence that 60 Years
`
`will undermine the market for Catcher or any authorized sequel.
`
`(Def's Mem. of Law, 23.) However, while it appears unlikely that
`
`60 Years would undermine the market for Catcher itself, it is
`
`quite likely that the publishing of 60 Years and similar
`
`widespread works could substantially harm the market for a
`
`Catcher sequel or other derivative works, whether through
`
`confusion as to which is the true sequel or companion to Catcher,
`
`or simply because of reduced novelty or press coverage.
`
`See
`
`Warner Bros. Entertainment, Inc., 575 F.Supp. at 550-51 (finding
`
`
`
`Case 1:09-cv-05095-DAB Document 30 Filed 07/01/09 Page 35 of 37
`
`Case 1:O9—cv—O5095—DAB Document 30 Filed 07/01/09 Page 35 of 37
`
`mind" and is “entitled to protect his opportunity to sell his
`
`[derivative works].”
`
`J.D. Salinger v. Random House, Inc., 811
`
`F.2d 90, 99 (2d Cir. 1987)
`
`(emphasis original); see also, Castle
`
`Rock, 150 F.3d at 145-46 (finding the fourth factor to favor
`
`Plaintiff even where it “has evidenced little if any interest in
`
`exploiting this market for derivative works" because copyright
`
`law must “respect that creative and economic choice”).
`
`This approach is also consistent with the purposes of
`
`copyright in “promot[ing]
`
`the Progress of Science and useful Arts
`
`," U.S. Const., Art. I,
`
`§ 8, cl. 8, because some artists
`
`may be further incentivized to create original works due to the
`
`availability of the right ngt to produce any sequels. This might
`
`
`
`Case 1:09-cv-05095-DAB Document 30 Filed 07/01/09 Page 36 of 37
`
`
`
`Case 1:O9—cv—O5095—DAB Document 30 Filed 07/01/09 Page 36 of 37
`
`5. Aggregate Analysis
`
`The Court has considered the four factors set forth in § 107
`
`in light of the purposes of copyright, and, while the Court does
`
`find some limited transformative character in 60 Years, as
`
`described, ggpgg,
`
`§ (II)(C)(l)(v), it finds that the alleged
`
`parodic content is not reasonably perceivable, and that the
`
`limited non-parodic transformative content is unlikely to
`
`overcome the obvious commercial nature of the work,
`
`the likely
`
`injury to the potential market for derivative works of Catcher,
`
`and especially the substantial and pervasive extent to which 60
`
`Years borrows from Catcher and the character of Holden Caulfield.
`
`
`
`Case 1:09-cv-05095-DAB Document 30 Filed 07/01/09 Page 37 of 37
`
`
`
`Case 1:O9—cv—O5095—DAB Document 30 Filed 07/01/09 Page 37 of 37
`
`III. CONCLUSION
`
`Given the Court's finding that Plaintiff is likely tog
`
`succeed on the merits of its Copyright claim, as well as the
`
`presumption of irreparable harm,
`
`the Court preliminarily enjoins
`
`Defendants from manufacturing, publishing, distributing,
`
`shipping, advertising, promoting, selling, or otherwise
`
`disseminating any copy of 60 Years or any portion thereof,
`
`in or
`
`to the United States.
`
`SO ORDERED .
`
`Dated:
`
`New York, New York
`
`July 1, 2009
`
` \
`
`Deborah A. Batts
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