I have yet to read the opinion, but my initial reaction is that the decision makes perfect sense: works playing off of known earlier works have been part of literature for as long as literature has existed. I also wonder whether the significance of the Southern District's initial decision, by Judge Deborah Batts, to preliminarily enjoin the publication of 60 Years Later: Coming Through the Rye has been even further eroded by Judge Preska's decision. Judge Batts' decision, which was not a final order but instead preliminarily enjoined publication of 60 Years Later, exists in limbo anyway, given that it was reversed on appeal for the failure by Judge Batts to make any finding or cite any evidence that 60 Years Later threatened "irreparable harm" to Catcher in the Rye.
Set forth below is the post I wrote on July 9, 2009 strongly taking issue with Judge Batts' decision in the Catcher in the Rye case. Interestingly, it is not the only time I have found Judge Batts' grasp of the intersection between copyright and art lacking. The United States Court of Appeals for the Second Circuit last year reversed her decision finding that that Richard Prince had infringed Patrick Cariou's photographs of Rastafarians in creating works that consisted of painting (to various degrees) over reproductions of those photographs. I wrote about Cariou v. Prince extensively at the time of the trial before Judge Batts and, subsequently, here.
How good a literary critic was the judge in the Catcher in the Rye case? (July 7, 2009)
Will the judge's decision that 60 Years Later: Coming Through the Rye infringes J.D. Salinger's copyright in
Catcher in the Rye stand up on appeal? In essence, the decision turns on whether Coming through the Rye is a commentary and criticism of Catcher in the Rye or, instead, an effort to cash in on the copyrighted character of
Holden Caulfield. In other words, does Coming through the Rye stand on its own as an original work? I can't tell
for sure without reading it myself, of course. Nevertheless, there are problems in the judge's decision that cast
it, in my mind, in some doubt.
Most troubling is the judge's conclusion that Coming through the Rye cannot be deemed to comment
on the original because Holden in the former (at age 16) is identical to Holden in the latter (at age 76.)
The judge stated: "First, Colting's assertion that his purpose in writing was to critically examin[e] the character Holden,
and his presentation in Catcher [in the Rye] as an authentic and admirable (maybe even heroic gure is problematic
and lacking in credibility. To support that point, the judge refers to the sworn declaration
submitted by Martha Woodmansee on behalf of Colting, quoting Woodmansee's statement that "[r]eaders
familiar with [Catcher in the Rye] will anticipate the same laconic observations and reactions they associate
with Holden Cauleld. What do they get from the 76 year old C [as the Caulfield character is called in
60 Years on]? They get much the same kinds of observations and reactions, but coming from a 76 year old and applied to a world much changed in the 60 intervening years, such observations and reactions fall flat. They reveal a character whose development was arrested at 16, who instead of growing up could only grow old."
The judge also quotes Woodmansee's statement that t"he observations and reactions of Mr. C evoke [in style and content] vintage Holden Cauleld, and coming from a 16 year old, they seemed honest and endearing. Coming
from the 76 year old C, however, they seem pathetic."
In short, the judge concluded that Coming through the Rye was not a parody of Catcher in the Rye
because Holden in the new work was merely a copy, not an original character. She stated that it is hardly
a parody to merely put the same character in a new situation: It is hardly parodic to repeat that same
exercise in contrast, just because society and the characters have aged.
That is odd reasoning. One of the principal criticisms of Catcher in the Rye since its publication is
that Holden did not develop at all emotionally or intellectually through the course of the book's story.
"John Aldrige wrote that in the end, Holden remains what he was in the beginning [cynical, defiant,
and blind. As for the reader, there is identication but no insight, a sense of 'pathos but not tragedy.'
This may be Salinger's intent, as Holden's world does not possess sucient humanity to make the search
for humanity dramatically feasible." In other words, by depicting a 76 year old Holden who is no different
than Salinger's 16 year old Holden, one might conclude that the author was parodying the self-absorbed,
dense, and unreflective 16 year old (as well as the author, who contributed nothing to the creative
life of the society from which had done everything to withdraw after 1964).
Indeed, Woodmansee submitted a declaration as a literary expert and in it takes the same characterization of the "young" and the "old" Holden the judge seizes upon and sees it precisely as parody. Her testimony is that "Mr. C" in Coming through the Rye is "a character whose development was arrested at 16, who instead of growing up only grows old. This is a devastating critique of Holden Cauleld in particular, of [Catcher in the Rye] generally, and of its author J.D. Salinger, whoseapparent inability to develop his hero reveals him to be burned out." (emphasis added)
Is Coming through the Rye fair use.? I think on appeal it might well be found to be . It's interest-
ing that we make our judges literary critics in these cases. Why do I doubt the judge's crtiticism?
Because it seems to simplistic and because, knowing Martha Woodmansee personally, I feel far more
condent in her abilities as a literary critic than I do in the judge's.