Journal of the Copyright Society of the U.S.A., Vol. 59, No. 2, pp. 291-345, Winter 2012
57 Pages Posted: 5 Sep 2011 Last revised: 8 Nov 2012
Date Written: September 4, 2011
This paper analyzes J. D. Salinger's recent suit against Fredrik Colting for infringing Salinger's copyright in, 'The Catcher in the Rye' and its character Holden Caulfield. The case has been widely noticed because the Second Circuit extended to copyright cases a heightened standard for injunctive relief that requires evidence of irreparable harm. Meanwhile, however, the court's certainty that Salinger should prevail on the merits has escaped much critique. To begin, I argue that the district court misread Colting's novel by mistaking his metafiction for a conventional sequel. I suggest two practical litigation strategies to avoid this outcome. Next, I fault the Second Circuit for adopting this error and further asserting that Colting's novel irreparably harmed Salinger by invading his "right not to speak." This rhetoric, if taken seriously, distorts the meaning of Section 107 of the Copyright Act and undermines the policy of the fair use defense. Paradoxically, it also enables district courts to issue injunctive relief even though plaintiffs have no evidence that an alleged infringement is causing them commercial harm.
Keywords: copyright, fair use, equitable remedies, rhetoric, literature, literary character, Salinger, Holden Caulfield
JEL Classification: K00, K11, K41
Suggested Citation: Suggested Citation
O'Neill, Kate, The Content of Their Characters - J.D. Salinger, Holden Caulfield and Fredrik Colting (September 4, 2011). Journal of the Copyright Society of the U.S.A., Vol. 59, No. 2, pp. 291-345, Winter 2012; University of Washington School of Law Research Paper No. 2011-23. Available at SSRN: https://ssrn.com/abstract=1922286