Shortly before an 11:30 a.m. hearing on June 17, the sergeant at arms appeared in the hallway outside of courtroom 24B in Manhattan federal court. “Plaintiff?” he called out. “Plaintiff? I guess the plaintiff isn't here?” he asked. The lawyers exchanged sideways glances. “Surprised?” one of them quipped. After all, the plaintiff is none other than the world's most famous recluse, J.D. Salinger.
Earlier this month Salinger filed suit against an unknown Swedish writer and publisher named Fredrik Colting (writing under the name John David California, and his U.S. distributor, SCB Distributors, seeking to permanently bar publication in the United States of 60 Years Later: Coming Through the Rye, a work of fiction that Salinger's lawyers claim is an “unauthorized sequel” to Salinger's most famous work, The Catcher in the Rye. The case, replete with ironic twists as well as potentially precedent-setting questions, such as how much control authors can claim over characters they create, has captivated the literary world.
Perhaps the most tantalizing prospect was raised by the sergeant at arms when he called out for the plaintiff: might Salinger finally break his decades-long silence and speak about Holden Caulfield? If this case proceeds, several attorneys said, he may have no choice.
“It's certainly possible,” defense attorney Ned Rosenthal told PW, when asked if he might be the first to interview J.D. Salinger about his most famous character—via a deposition. “There is a very good chance if the case goes forward that Salinger will have to explain his concerns and exactly how [Colting's] book damages him, and not just rely on agents and lawyers to tell the story.” Marcia Paul, Salinger's attorney at Davis Wright Tremaine, politely declined to comment on the case or any aspect of her client's life or work.
'I'm from Sweden'
For his part, Fredrik Colting, speaking to PW from his home outside of Göteborg, Sweden, seems genuinely bemused by all the fuss. “Swedish Television came and asked me how it felt to have the world's most talked-about book,” he told PW by phone. “I was like, 'you mean the world's most-talked-about book that nobody's read?'”
In some respects, the earnest 33-year-old writer and publisher is an unlikely foil to Salinger. This is Colting's first published novel, self-published by his own company, Nicotext. He is not a student of literature—in fact, he never finished college. He isn't even a big fan of Salinger. “I've only read it twice,” he said of The Catcher in the Rye, “once when I was 15, and once before I started this book. I still have a hard time understanding why it is such a popular novel. To me, it's just some book.”
A book, of course, that is ingrained in the American consciousness like few others. Since its 1951 publication by Little, Brown, and through various paperback editions, including the iconic red Bantam mass market edition first published in 1966, The Catcher in the Rye has sold more than 35 million copies and is a staple on high school reading lists. Salinger, meanwhile, has towered over his work, a mysterious figure whose withdrawal from the public has ironically served to make him a larger-than-life presence. He has not published or licensed any new work since 1965. He has spurned all television, stage and film adaptations of his work, including overtures from Steven Spielberg, and even refused to license audio editions.
“He feels strongly that his fiction and his characters remain intact as he wrote them,” Phyllis Westberg, Salinger's agent at Harold Ober Associates, told the court, “unstaged, unfilmed and free of outside interpretation.” Westberg estimated that a sequel penned by Salinger would fetch as much as a $5 million advance in today's market.
If the questions in the legal case now underway are complex, the conceit of Colting's 60 Years Later is simple: an aging Salinger dusts off his typewriter and attempts to bring back his most famous character—referred to as “Mr. C,” now a 76-year-old man, in an attempt to kill him off and thus exorcise the literary demon that has overshadowed his life. Colting creates an aged Caulfield, mimics Salinger's short, choppy writing style and uses some of Caulfield's adventures and phrases. But he strongly denied the book is a sequel; rather, it's a “stand-alone” story that serves as a critique of Salinger and his work.
Unfortunately for Colting, the book's early marketing materials billed the book as a “freestanding sequel to Catcher in the Rye,” a perception he will now have to battle in court. “My only intention was to explore the relationship between Caulfield and Salinger,” Colting insisted. “I wanted to explore what happens to characters. When a book is finished, do the characters cease to exist, or do they live on somehow?”
Given Salinger's history, it seems almost unfathomable that any author would take on his work without at least spoiling for some kind of fight. Colting, however, is rather apologetic for possibly upsetting Salinger, and wary of the media attention his book has generated. “I guess I knew there would be interest,” he conceded. “But I can't say I knew or suspected any of this was going to happen. I'm from Sweden. People don't go around suing each other here. Maybe I was a little naïve.”
Unfair Use?
After a few days of wondering how, or if, to proceed with publication, the defendants were happy to accept the (for now) pro bono help of Rosenthal and his firm, Frankfurt Kurnit Klein & Selz, one of the world's top intellectual property practices. The firm was also involved in the last major case involving a so-called unauthorized sequel—Alice Randall's The Wind Done Gone, though in that case Rosenthal and his firm fought on the other side, representing the Margaret Mitchell estate.
In the Mitchell case, Rosenthal's firm argued that Randall's substantial taking of characters from Gone with the Wind constituted copyright infringement, and initially the court agreed, issuing a preliminary injunction barring Houghton Mifflin from publishing the book, the same outcome Salinger's attorneys seek. In vacating that judgment, however, the 11th Circuit Court of Appeals found that The Wind Done Gone's treatment of race chipped away at the romanticized version of the South portrayed in Gone with the Wind and thus served a critical function, protected by fair use. The parties eventually settled, and the book was published.
On June 17, Rosenthal told Second Circuit judge Deborah Batts that Colting's fictional meditation also offers a critical perspective on one of the world's most famous authors' relationship to his best-known creation, and therefore should be similarly protected by fair use. From Rosenthal's opening argument, however, Batts was deeply skeptical. She quickly ruled that the character of Holden Caulfield was “sufficiently delineated” to be entitled to copyright protection, the first time the Second Circuit has explicitly extended copyright to a single character from a single literary work. And before adjourning for lunch, Batts hinted she would rule from the bench on the fair use question, telling Rosenthal that she saw no “perceptible” criticism or commentary “at all” in Colting's use of Holden Caulfield.
During the 45-minute break, however, something changed. When Batts returned to the bench, she said she would take more time to consider the fair use question. She is now set to rule any time within the next 20 days. Regardless of her finding, however, attorneys agree the case's ultimate fate lies at the appellate level, and a ruling there could take months, possibly even years.
That's because the law offers remarkably little guidance in determining what might reasonably constitute parody, criticism or commentary, or how much taking from a previous work is allowable in order to make commentary. In his opinion in the Mitchell case, Judge Stanley Birch noted that the Supreme Court did not require that would-be parodists take only “the bare minimum amount to conjure up the original,” and acknowledged that parodists must by definition use “at least enough of the original to make the object of its critical wit recognizable.” That's a broad standard, Birch noted, adding that “literary relevance is a highly subjective analysis ill-suited for judicial inquiry.” In other words, one judge's unauthorized sequel may very well be another judge's critical inquiry.
Will Salinger Speak?
Ironically, in what could be the 90-year-old Salinger's last stand, the copyright questions at the heart of this case could at last compel the reclusive author to speak. “The broad discovery rules would normally allow the defense to question Salinger on a number of relevant issues,” Paul LiCalsi, a partner in Mitchell Silberberg & Knupp explained to PW, including Salinger's “past actions and preferences about the exploitation of The Catcher in the Rye.” If Salinger refuses to answer the defense's questions, LiCalsi notes, the court can impose sanctions and even dismiss the case. Thus, filing suit against Colting may have put Salinger's desire for privacy on a collision course with his desire to protect Holden Caulfield.
Would Salinger drop or weaken his case rather than be deposed? Or would he break his silence to keep Holden Caulfield protected until he enters the public domain—at least 31 years away—and possibly more given Congress's penchant for extending copyright?
Make no mistake: this case has not captured worldwide attention because the world yearns for clarity in fair use questions, or because of a 33-year-old Swede's talent for fiction. It is because fans and scholars alike cling to the hope that they will one day hear Salinger speak of his work, or even read a new work, something Colting's book, fair use or not, could never substitute for.
“This case is going to overshadow my book, isn't it,” Colting asked PW in a conversation after last week's hearing. The answer is, yes.
