U.S. District Judge Deborah Batts in New York has enjoined the publication of a sequel to The Catcher in the Rye as a copyright infringement. She found that the sequel used the original work and was not a parody.

Salinger broke from his self-imposed seclusion to file an interesting lawsuit to block a novel based on Holden Caulfield, the hero from “The Catcher in the Rye.” The book, entitled “60 Years Later: Coming Through the Rye,” is written by an author calling himself J.D. California and published by a Swedish company. It features Caulfield as an old man. The defendants include Swedish publisher Nicotext; its offshoot, Windupbird Publishing Ltd.; and California-based SCB Distributors as defendants.

For those of you that have not read the novel since high school (in cities where it was not banned by extremists), Caulfield is the narrator of the novel who relives the days following his’s expulsion from Pencey Prep. He is described in the novel as:

The boy himself is at once too simple and too complex for us to make any final comment about him or his story. Perhaps the safest thing we can say about Holden is that he was born in the world not just strongly attracted to beauty but, almost, hopelessly impaled on it.

Salinger’s lawyers moved to stop publication and sale of the book, stating “The Sequel infringes Salinger’s copyright rights in both his novel and the character Holden Caulfield, who is the narrator and essence of that novel.”

Salinger has previously insisted that Caulfield’s character must remain as he left it in the novel: “There’s no more to Holden Caulfield. Read the book again. It’s all there. Holden Caulfield is only a frozen moment in time.”

Nicotext hardly rivals Salinger as a literary source, producing such works as “The Macho Man’s (Bad) Joke Book” and “Give It To Me Baby” (an erotic “flick book”). This hardly looks like the outfit suited for this particular job. However, it is not the quality of the publication but the right to publish that is at the heart of the lawsuit. (“All morons hate it when you call them a moron.” ~J.D. Salinger, The Catcher in the Rye).

The book is already available in Europe and the United Kingdom.

I have previously expressed concerns over this level of control of later works by authors. Salinger produced iconic figures and should not, in my view, be able to freeze the use of such character so long as someone is not plagiarizing or passing themselves off as Salinger.

The obvious comparison being drawn is to the litigation over the sequel to Margaret Mitchell’s “Gone With the Wind.” The effort to stop the novel “The Wind Done Gone,” by novelist Alice Randall, was unsuccessful. In that case, a district court in the Northern District Court in Atlanta granted the Mitchell Trusts a preliminary injunction but the Eleventh Circuit found that it was not an infringement of copyright and lifted the injunction. In SunTrust Bank v. Houghton Mifflin Co., the court found that the publisher had made a convincing case of fair use. In a view clearly relevant to the instant case, the court emphasized that the book was materially different and would not be confused with the original: holding that any effect on the original author was “strongly overshadowed and outweighed in view of its highly transformative use” of the work. The same can be said in this case.

Of course, his lawyers may have followed the advice of his protagonist: “It’s funny. All you have to do is say something nobody understands and they’ll do practically anything you want them to. ”

The court in the opinion below rejects the transformative use claim as well as the parody claim.

Here is the opinion: 070209batts