The Second Circuit Court of Appeals has vacated a September, 2009 injunction barring publication of Swedish author Fredrik Colting's 60 Years Later: Coming Through the Rye, which lawyers for author J.D. Salinger argued was an illegal, "unauthorized sequel" to The Catcher in the Rye. Salinger's legal team now have 10 days to seek a temporary injunction, otherwise the preliminary ban will be lifted, possibly paving the way for Colting's book, published last year in Europe, to come out in a U.S. edition.
The case, however, is far from over. At the direction of the Second Circuit, the District Court will now reconsider its preliminary injunction. If the court decides not to reissue a preliminary injunction, the case could then proceed to trial. In her ruling last July, Judge Deborah Batts found Salinger was "likely to succeed on the merits of [his] copyright case," and issued a preliminary injunction barring publication of Colting's book, whose main character is based on Holden Caulfield. "The alleged parodic content" in Colting's work, Batts ruled, was not "reasonably perceivable."
At a September 3, 2009, appeal hearing, however, Colting's attorneys offered six separate grounds for vacating that injunction--including that irreparable harm must be proven in order to issue a preliminary injunction. "Without a shred of evidence of harm to the Plaintiff, the District Court has taken the extraordinary step of enjoining publication of the book," Colting's appeal noted. And, citing a 2006 Supreme Court patent case, eBay Inc. v. MercExchange L.L.C, the Second Circuit agreed that "eBay abrogated parts of this Court's preliminary injunction standard in copyright cases," and remanded the case to the district court to "reevaluate Salinger's preliminary injunction motion." The court did not decide whether the preliminary injunction issued by the district court constituted an "unconstitutional prior restraint on speech," nor did it get to the copyright claims.
The case had attracted worldwide attention, but more likely because it involved Salinger, than for the copyright principles at stake. Salinger, however, passed away in January, 2010, taking away the possibility that the author's first words on his major work in decades would come in a deposition.
