Salinger 'Catcher' Case Returned to Federal Judge by US Appeals Court

J.D. Salinger published “Catcher in the Rye” in 1951. The coming-of-age novel was on the New York Times' best-seller list for more than seven months and has sold more than 35 million copies. Salinger, who died in January at 91, hadn't published since 1965.

Author Fredrik Colting penned under the name John David California the novel “60 Years Later: Coming Through the Rye”. It was published last year in England by Windupbird Publishing Ltd.

In July 2009, U.S. District Judge Deborah Batts blocked Colting and is publisher from publishing the novel. The injunction prevented the book's scheduled U.S. release in September 2009, court papers state.

The plaintiffs in the case are Colleen Salinger, the author's widow, and Matthew Salinger, his son. Salinger claimed in the suit that there are "extensive similarities" between "Catcher" and "60 Years Later." Colting's novel features a 76-year-old character similar to Holden Caulfield, the fictional narrator of "Catcher," who meets the 90-year-old author who created him, according to court papers. He "never authorized any new narrative involving Holden or any work derivative of 'Catcher,'" according to court filings.

In appeal, a U.S. appeals court panel ordered federal judge Batts to revisit the legal basis for her decision. Sending the case back to her, the judges said the U.S. Supreme Court's decision in EBay Inc.'s patent-infringement case against MercExchange LLC was the standard to be used.

The court in the Ebay case ruled, that a plaintiff had to show the likelihood of irreparable harm to get an injunction, not just the probability of succeeding on the question of infringement.

"Although we conclude that the district court properly determined that Salinger has a likelihood of success on the merits, we vacate the district court's order," Judges Guido Calabresi, Jose Alberto Cabranes and Peter Hall said in a filing in the 2nd U.S. Circuit Court of Appeals in Manhattan. "EBay applies with equal force to preliminary injunctions that are issued for alleged copyright infringement," the court said.

Salinger’s lawyer, Marcia Beth Paul of Davis Wright Tremaine LLP, reacted by stating: “We are heartened that the appellate court agrees that Mr. Salinger's literary trust is likely to prevail on the merits of his claim and that this book infringes his copyright. The damage that will be caused by publication of this unauthorized sequel cannot be made whole by money.”

Edward Rosenthal of Frankfurt Kurnit Klein & Selz PC, representing Colting, said that he is confident that when the district court applies the legal standard required by the appeals court, the book will be permitted to be published.

The appeals case is Salinger v. Colting, Windupbird Publishing Ltd., 09-2878, 2nd U.S. Circuit Court of Appeals (Manhattan).

The lower-court case is Salinger v. Colting, 09- 5095, U.S. District Court, Southern District of New York (Manhattan).