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`Case 1:09—cv—05095—DAB Document 31
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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
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`7;
`
`
`
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`"'"
`
`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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`I.
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`INTRODUCTION
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`As set forth on the record of June 17, 2009, and for the
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`reasons stated therein,
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`the Court found that Plaintiff possesses
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`a valid Copyright in the novel The Catcher in the Rye,
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`that the
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`character of Holden Caulfield (“Holden" or “Cau1fie1d”)
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`is
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`sufficiently delineated so that a claim for infringement will
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`lie.
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`2 Nimmer on Copyright
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`§ 2.12 (2009)
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`(“[I]n those cases
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`recognizing such protection,
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`the character appropriated was
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`distinctively delineated in the plaintiff's work.").
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`Additionally,
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`for the reasons stated on the record of June 17,
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`2009,
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`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
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`the disparities, would be disposed to overlook them, and regard
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`the aesthetic appeal of the two works as the same.")
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`(internal
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`quotations omitted).
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`The Court now addresses Defendants’ claim that their novel
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`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).
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`The
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`Court bases its analysis on the oral arguments of June 17, 2009
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`and the parties’ submissions.1
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`II. DISCUSSION
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`A.
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`The Preliminary Injunction Standard
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`B.
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`The Fair Use Doctrine
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`From the infancy of copyright protection,
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`some opportunity
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`for fair use of copyrighted materials has been thought necessary
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`to fulfill copyright's very purpose,
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`‘[t]o promote the Progress
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`of Science and useful Arts....'" Campbell v. Acuff-Rose Music,
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`Inc., 510 U.S. 569, 575 (1994)
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`(quoting U.S. Const., Art. I,
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`§ 8,
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`cl. 8). At the Constitutional level, while the “Copyright Clause
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`and the First Amendment
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`[are]
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`intuitively in conflict,
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`[they]
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`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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`Books, 575 F.Supp.2d 513, 540 (S.D.N.Y. 2008)
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`(“At stake in this
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`case are the incentive to create original works which copyright
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`protection fosters and the freedom to produce secondary works
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`which monopoly protection of copyright stifles — both interests
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`benefit the public.")(guoting Pierre N. Leval, Toward a Fair Use
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`Standard, 103 Harv. L. Rev. 1105, 1109 (1990)
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`(hereinafter
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`“Leval"))
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`(noting that although “the monopoly created by
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`copyright
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`.
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`.
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`.
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`rewards the individual author in order to benefit
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`the public[,]" on the other hand “the monopoly protection of
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`intellectual property that impeded referential analysis and the
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`development of new ideas out of old would strangle the creative
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`process.")
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`(4)
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`the effect of
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`the use upon the potential market for or
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`value of the copyrighted work.
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`17 U.S.C.
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`§ 107.
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`In applying the fair use doctrine “[t]he task is not to be
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`simplified with bright-line rules, for the statute,
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`like the
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`doctrine it recognizes, calls for case-by—case analysis" and “all
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`[of the four factors] are to be explored, and the results weighed
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`together in light of the purposes of copyright." Campbell, 510
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`U.S. at 577-78.
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`C. Applying the Four Factor Analysis to 60 Years
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`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,
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`the less will be the significance of other factors,
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`like commercialism,
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`that may weigh against a finding of fair
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`use."
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`EQL
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`(giting Sony Corp. of America v. Universal City
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`Studios, Inc., 464 U.S. 417, 478-80 (U.S. 1984)
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`(Blackmun, J.,
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`dissenting)).
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`“The first fair use factor calls for a careful
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`evaluation whether the particular quotation is of the
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`transformative type that advances knowledge and the progress of
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`the arts or whether it merely repackages, free riding on
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`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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` C
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`60 Years contains parodic elements that are transformative in
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`nature.
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`(Defs’ Mem. of Law, 16-19).
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`i. The Satire[Parody Distinction
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`In Campbell,
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`the Supreme Court held that parody, although
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`not included within the text of § 107,
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`is a form of comment or
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`criticism that may have a transformative purpose. Campbell, 510
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`U.S. at 579. Unlike satire, which critiques and comments on
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`aspects of society more broadly, parody sharpens its knives for
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`the very work from which it borrows.
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`gge id; at 580-81, 581
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`n.15. Thus, whereas “parody needs to mimic an original to make
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`its point, and so has some claim to use the creation of its
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`victim's .
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`.
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`.
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`imagination,
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`[
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`] satire can stand on its own two
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`modern society,
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`the copied work must be, at least in part, an
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`object of the parody.")
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`Within the domain of Copyright
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`law, “the heart of any
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`parodist’s claim to quote from existing material,
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`is the use of
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`some elements of a prior author's composition to create a new one
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`that, at least in part, comments on that author's works."
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`Campbell, 510 U.S. at 580. “If, on the contrary,
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`the commentary
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`has no critical bearing on the substance or style of the original
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`composition, which the alleged infringer merely uses to get
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`attention or to avoid the drudgery in working up something fresh,
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`the claim to fairness in borrowing from another's work diminishes
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`accordingly (if it does not vanish).
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`.
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`.”
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`gdp at 581.
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`on that author's wgrk§.)" (emphasis added);
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`id. at 597 (Kennedy,
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`J-, concurring)
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`(“.
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`.
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`. parody may qualify as fair use only if it
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`draws upon the original composition to make humorous or iconic
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`commentary about that same composition.")
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`(emphasis added); see
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`also, Suntrust Bank, 268 F.3d at 1268 (“For purposes of our fair-
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`use analysis, we will treat a work as a parody if its aim is to
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`comment upon or criticize a prior work .
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`.
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`.
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`“)
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`(emphasis added);
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`Dr. Suess Enterprises, L.P. v. Penguin Books USA, Inc., 924
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`F.Supp. 1559, 1569 (S.D. Cal. 1996)
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`(“Courts have allowed parody
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`claims only where there was a discernable direct comment on the
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`original.")
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`(emphasis added).
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`In Suntrust Bank v. Houghton Mifflin Company, 268 F.3d 1257,
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`
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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
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`same factual finding. As the Suntrust court stated:
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`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
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`definition,
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`the parodic character of TWDG is clear.
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`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.
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`268 F.3d at 1268-69.
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`60 Years, however, contains no reasonably
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`discernable rejoinder or specific criticism of any character or
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`First, Colting's assertion that his purpose in writing
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`Catcher was to “critically examin[e]
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`the character Holden, and
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`his presentation in Catcher as an authentic and admirable (maybe
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`even heroic)
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`figure" is problematic and lacking in credibility.
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`(Colting Decl.,
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`fl 18.); see also (Woodmansee Decl.,
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`fl 13)
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`(“Readers familiar with [Catcher] will anticipate the same
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`laconic observations and reflections they associate with Holden
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`Caulfield. What do they get from the 76 year old C? They get
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`much the same kinds of observations and reflections, but coming
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`from a 76 year old and applied to a world much changed in the 60
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`intervening years, such observations and reflections fall flat.
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`They reveal a character whose development was arrested at 16, who
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`version of the character.
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`(Colting Decl.,
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`flfl 18, 21).
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`In fact,
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`it was these very characteristics that led Caulfield to leave or
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`be expelled from three boarding schools,
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`to wander the streets of
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`New York City alone for several days,
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`to lack any close friends
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`other than his younger sister Phoebe, and ultimately to become a
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`patient in a psychiatric hospital. Hence,
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`to the extent Colting
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`claims to augment
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`the purported portrait of Caulfield as a “free-
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`thinking, authentic and untainted youth" and “impeccable judge of
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`the people around him" displayed in Catcher by “show[ing]
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`the
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`effects of Holden's uncompromising world view," (Def’s Mem. of
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`Law, 18),
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`those effects were already thoroughly depicted and
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`apparent in Salinger’s own narrative about Caulfield.
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`See, e.g.,
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`[him] even more depressed when she said that")
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`(emphasis
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`original);
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`(Catcher, at 186)
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`(Mr. Antolini, telling Holden that
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`“I have a feeling that you're riding for some kind of a terrible,
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`terrible fall”);
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`(Catcher, at 189)
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`(Mr. Antolini,
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`telling Holden
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`that “[a]mong other things, you'll find that you're not the first
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`person who was ever confused and frightened and even sickened by
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`human behavior");
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`(Catcher, at 194)
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`(“So I sat up.
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`I still had
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`that headache.
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`It was even worse. And I think I was more
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`depressed than I ever was in my whole life.").
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`In fact, it can be argued that the contrast between Holden's
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`authentic but critical and rebellious nature and his tendency
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`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
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`decades ago, and thus is anything but parodic in this regard.
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`Furthermore, it is equally apparent that J.D. Salinger was
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`aware of, and indeed emphasized the fact that Holden's
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`uncompromising authenticity was at least partially responsible
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`for his failure to ‘grow up’ and become a fully-functional adult
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`with the capacity for mature relationships.
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`See, e.g.,
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`(Catcher,
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`at 9)
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`(“I was sixteen then, and I'm seventeen now, and sometimes
`
`I act like I'm about thirteen .
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`.
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`. Everybody says that,
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`especially my father.”);
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`(Catcher, at 132-34)
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`(Holden, describing
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`to Sally Hayes his plan for the two of them to run away to
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`Vermont, get married and live in a cabin, but then causing her to
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`Colting and Defense experts contend that 60 Years is attempting
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`to accentuate how Holden's emotional growth would ultimately be
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`stunted by his unwillingness to compromise his principles or
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`engage with ‘the phonies,’ they were again simply rehashing one
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`of the critical extant themes of Catcher.
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`While it is true that an artist or author “need not label
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`their whole [work]
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`.
`
`.
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`. a parody in order to claim fair use
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`protection," Campbell, 510 U.S. at 583 n. 17, it is equally true
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`that “courts .
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`.
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`. must take care to ensure that not just any
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`commercial takeoff is rationalized post hoc as a parody."
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`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
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`Holden Caulfield's disconnectedness, absurdity, and
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`ridiculousness, but rather to satisfy Holden's fans’ passion for
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`Holden Caulfield's disconnectedness, absurdity, and
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`ridiculousness, which Catcher has “elevated into the realm of
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`protectable creative expression." Castle Rock, 150 F.3d at 143.
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`Accordingly,
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`the Court finds that 60 Years contains no
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`reasonably perceived parodic character as to Catcher and Holden
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`Caulfield.
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`iii. Alleged Parody of Salinger
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`Defendants also contend that 60 Years is a critique of
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`of Law, 19)
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`(“[60 Years] also critically explores the
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`relationship between Salinger and his beloved character,
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`Holden."); see also (Colting Decl.
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`fl 7)
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`(“Like many people,
`
`I
`
`have long been fascinated by Salinger and his relationship to
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`Holden Caulfield.
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`I am intrigued by the fact that, after
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`creating Holden and other characters, Salinger has not published
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`a new work in nearly half a century and is almost never seen in
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`public.
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`It seems to me that Salinger has become as famous for
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`wanting not to be famous as he has for his writings.
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`He has
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`stayed in the public eye by claiming to have withdrawn from
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`it.");
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`(Woodmansee Decl.
`
`fl 8)
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`(“[60 Years] seeks to demonstrate
`
`that in writing [Catcher] J.D. Salinger was acting out of
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`character,
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`in order to criticize his reclusive nature and alleged
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`desire to exercise “iron-clad control over his intellectual
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`property, refusing to allow others to adapt any of his characters
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`or stories in other media,” (Colting Decl.
`
`fl 7),
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`is at most, a
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`tool with which to criticize and comment upon the author, J.D.
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`Salinger, and his supposed idiosyncracies.
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`It does not, however,
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`direct that criticism toward Catcher and Caulfield themselves,
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`and thus is not an example of parody.
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`Having determined that 60 Years lacks transformative parodic
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`character,
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`the Court now examines whether Defendants’ novel
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`contains other forms of transformative content.
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`as Defendants’ assert, accentuate and comment upon Holden
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`Caulfield's naivete, depression,
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`loneliness, absurdity, and
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`inability to grow and mature as a person, because these
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`characteristics were abundant, and perhaps even central to the
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`narrative of Catcher,
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`this aspect of 60 Years does not “add[]
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`something new, with a further purpose or different character,
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`altering the first with new expression, meaning, or message."
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`Campbell, 510 U.S. at 579 (internal quotations and citations
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`omitted).
`
`Nor do the mere facts that Holden Caulfield's character is
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`60 years older, and the novel
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`takes place in the present day make
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`60 Years ‘transformative.’
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`As the Second Circuit clearly noted
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`injected Salinger into this novel does have some transformative
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`value. Some. Limited.”).
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`At most, however,
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`this device utilizes
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`Qatghgr and the characters of Holden Caulfield and Salinger as
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`tools with which to criticize and comment upon the author, J.D.
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`Salinger, and his supposed idiosyncracies, rather than on the
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`work itself.
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`Furthermore,
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`the non—parodic,
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`transformative aspect of
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`Salinger the character is limited. First,
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`the admissions5 by
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`Defendants’ as to the character and purpose of 60 Years as a
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`sequel to a beloved classic belies any claim that this critique
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`of J.D. Salinger and his behavior was the primary purpose of the
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`novel.
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`It is simply not credible for Defendant Colting to assert
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`value," the “transformative character of [that work]
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`is
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`diminished- ”
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`QQ§§_l;;Q, 575 F.Supp.2d 513, 544 (S.D.N.Y. 2008)(citing Bill
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`Graham Archives v. Dorlin Kindersle Ltd., 448 F.3d 605 (2d Cir.
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`2006)).
`
`As noted further,
`
`infra § (II)(C)(3), 60 Years borrows quite
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`extensively from Catcher, both substantively and stylistically,
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`such that, when combined with the inconsistent use of the
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`transformative element of the character of Salinger,
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`the ratio of
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`the borrowed to the novel elements is quite high, and its
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`transformative character is diminished.
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`_§g Suntrust Bank, 268
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`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
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`remaining factors.
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`vi. Commercial Nature
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`The other prong of the first factor of the § 107 test asks
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`whether the otherwise infringing work “serves a commercial
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`purpose or nonprofit educational purpose." Suntrust Bank, 268
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`F.3d at 1269 (citing § 107(1)). Here, Defendants do not contest
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`that 60 Years is to be sold for profit, and therefore this prong
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`of the first factor weighs against a finding of fair use.
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`2. The Nature of the Copyrighted Work
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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
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`fiction, or more factual, with a greater leeway being allowed to
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`a claim of fair use where the work is factual or informational."
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`2 Abrams, The Law of Copyright,
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`S 15:52 (2006).
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`Here there is no question that in this case,
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`the novel The
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`Catcher in the Rye is a “creative expression for public
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`dissemination [that] falls within the core of the copyright's
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`protective purposes." Campbell, 510 U.S. at 586. Consequently,
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`this factor weighs against a finding of fair use.
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`3. The Amount and Substantiality of the Portion Used in
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`than is necessary for the alleged transformative purpose of
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`criticizing Salinger and his attitudes and behavior. Most
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`notably, Defendants have utilized the character of Holden
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`Caulfield,
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`reanimated as the elderly Mr. C, as the primary
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`protagonist of 60 Years. Mr. C has similar or identical
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`thoughts, memories, and personality traits to Caulfield, often
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`using precisely the same or only slightly modified language from
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`that used by Caulfield in Catcher, and has the same friends and
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`family as Caulfield.
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`For example,
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`like Holden, Mr. C is a
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`frequent liar, constantly complains,
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`is out of shape, has trouble
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`maneuvering in the dark, combs his hair with his hand to one
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`side, wears the same red hunting cap,
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`is obsessed with whether
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`enough of that original to make the object of its critical wit
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`recognizable." Campbell, 510 U.S. at 588. However, for the non-
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`parodic purpose of commenting upon Salinger, rather than his
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`work, it was unnecessary for Colting to use the same protagonist
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`with repeated and extensive detail and allusion to the original
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`work.
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`In addition to the use of Caulfield as protagonist, 60 Years
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`depends upon similar and sometimes nearly identical supporting
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`characters, settings,
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`tone, and plot devices to create a
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`narrative that largely mirrors that of Catcher.
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`For example,
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`both Holden and Mr. C have a sister named Phoebe who “kills
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`[them]” and is their only real friend, an older brother named
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`You old pigfucker, he says .
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`.
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`.
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`." (60 Years, at 90-91.)
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`Again, Stradlater screams “[y]ou old pigfucker!" at Mr. C.
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`(60
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`Years, at 92.)
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`In both novels,
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`the protagonist nearly has sex but
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`ultimately decides not to, finds himself drawn to Central Park,
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`has a huge breakfast, which is unusual for him, ponders where the
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`ducks go during the winter when the ice freezes, stands on a hill
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`next to a cannon watching a sporting competition, and gets
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`punched in the shoulder by Stradlater.
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`(Paul Aff., Ex. C, Ch.1,
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`2-3, 5, 7, 11-12, 16.) Both characters are disgusted by the
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`thought of Mr. Spencer's wearing a robe that exposes his hairy
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`chest, and both reference the film The 39 Steps.
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`(Paul Aff., Ex.
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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
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`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.
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`(Catcher, at 98-99.)
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`In 60 Years, Mr. C relates that:
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`Allie died a long time ago and the thing about him was
`that you had to love him.
`I'm not kidding, everyone
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`did.
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`Even though he tried to latch on when we were
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`riding our bikes down to the old cemetery, or going
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`treasure hunting behind Leeman's Cove and was left
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`
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`(Catcher, at 173)
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`(emphasis added).
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`In 60 Years, Mr. C
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`narrates:
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`I could listen to kids screaming and laughing all day.
`I close my eyes and picture them running after each
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`other. So much energy
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`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
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`find myself standing up .
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`.
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`.
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`. 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,
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`and all I have time to do is lift my arms up with my
`palms facing the sky.
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`A red bundle lands in my arms with a soft thud
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`Something in my chest moves and as the leaf falls from
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`my face a tiny little face looks up at me, he looks
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`more surprised than scared, and before everything
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`becomes black I get a look at his straw blond hair and
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`It's so sudden. One moment it's a wall all around me
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`. 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
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`There's a hollow thud when I land .
`outstretched and my face is old .
`.
`
`. My arms are
`.
`.
`. and when I look
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`up I see myself holding myself.
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`(60 Years, at 271-73.)
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`Then, a few pages later at the end of the novel, Mr. C reunites
`with his son:
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`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.
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`the new elements" in 60 Years is unnecessarily high.
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`ggg
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`§unt;u§t_§an5, 268 F.3d at 1280 (Marcus, J., concurring)
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`(finding
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`the issue of transformative character to cut “decisively in
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`[Defendant's]
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`favor" where the ratio of “the borrowed and the new
`
`elements” is “very low, and the incongruity between them wide.")
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`Finally, both narratives are told from the first-person
`
`point of view of a sarcastic, often uncouth protagonist who
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`relies heavily on slang, euphemisms, and colloquialisms, makes
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`constant digression and asides, refers to readers in the second
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`person, constantly assures the reader that he is being honest and
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`that he is giving them the truth.
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`(Paul Aff., Ex. C, Ch.2, 23-29,
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`31-32.)
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`(emphasis original). Here, Colting does not use a change in
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`style to reinforce any parodic or other transformative purpose,
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`but
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`to the contrary, utilizes a very similar style with the
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`effect of emphasizing the similarities between 60 Years and
`
`Catcher, rather than casting a new, contrary light upon the
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`latter.
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`Consequently, while Defendants are correct that they “have a
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`right to be mean to Mr. Salinger," among other reasons because
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`“Mr. Salinger is not going to authorize somebody to write a book
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`to be mean about him," (Transcript, at 56),
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`in serving that
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`purpose they do not have the right to take more than what is
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`necessary from Salinger’s own copyrighted work in order to evoke
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`market for the original.”
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`Cam bell, 510 U.S. at 590 (internal
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`quotations omitted).
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`The inquiry “must take account not only of
`
`harm to the original but also of harm to the market for
`
`derivative works."
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`Id. Harm to the market weighs against a
`
`finding of fair use “because the licensing of derivatives is an
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`important economic incentive to the creation of originals." Lg;
`
`at 593.
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`“Potential derivative uses include only those that
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`creators of original works would in general develop or license
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`others to develop." Warner Bros. Entertainment, Inc., 575
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`F.Supp. at 549 (quoting Campbell, 510 U.S. at 592)
`
`(internal
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`quotation marks omitted)
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`(emphasis added).
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`Here, whether Defendants term 60 Years a sequel or not,
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`the
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`
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`F.3d 1107, 1112 (9th Cir. 1998)
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`(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,
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`or simply because of reduced novelty or press coverage.
`
`See
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`Warner Bros. Entertainment, Inc., 575 F.Supp. at 550-51 (finding
`
`
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`mind" and is “entitled to protect his opportunity to sell his
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`[derivative works].”
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`J.D. Salinger v. Random House, Inc., 811
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`F.2d 90, 99 (2d Cir. 1987)
`
`(emphasis original); see also, Castle
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`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
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`
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`5. Aggregate Analysis
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`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.
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`III. CONCLUSION
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`Given the Court's finding that Plaintiff is likely toy
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`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
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`disseminating any copy of 60 Years or any portion thereof,
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`in or
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`to the United States.
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`SO ORDERED .
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`Dated:
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`New York, New York
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`July 1, 2009
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` \
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`Deborah A. Batts