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Court Considers Appeal in Salinger Suit

Daily News

Online Only, posted 9.08.09

A court in New York City is considering whether the U.S. publication of Fredrik Colting’s 60 Years Later: Coming Through the Rye, originally billed as an “unauthorized sequel” to The Catcher in the Rye, could cause irreparable harm to author J. D. Salinger. During oral arguments at the U.S. Second Circuit Court of Appeals on Thursday, two members of the three-judge panel questioned whether a lower court had collected enough evidence before issuing a preliminary injunction against Colting in July.

“This case is about banning a book,” Edward Rosenthal, lead counsel for Colting, told the appeals court. Rosenthal reiterated arguments that 60 Years Later, which Colting published this summer in Sweden and the U.K. under the pseudonym J. D. California, deserved protection under the “fair use” provisions extended to criticism and parody. “Our position is this is not a sequel,” he said. “This is a highly transformative work about the relationship between Salinger and his character.” Colting’s appeal, filed in July, also contests the injunction on the grounds that it constitutes prior restraint of speech and presumes harm to Salinger before evidence of actual harm.

Marcia Paul, lead counsel for Salinger, argued that preemptive enjoinment was necessary to protect the integrity of her client’s intellectual property, something ex post facto monetary damages could not achieve. “You can’t put the genie back in the bottle,” Paul told the court.

Thursday’s hearing also touched upon the online availability of the contested spin-off. Judge Guido Calabresi called 60 Years Later a “rather dismal piece of work,” but questioned the effectiveness of barring a book which had already been published—without challenge—in Europe. “Anybody can just go on the Internet and get the London edition,” he said.

Amicus briefs have been filed in support of Colting’s right to publish by several library, free speech, and media groups, including the Associated Press, Gannett, the Tribune Company, and the New York Times. If the preliminary injunction is vacated, the famously reclusive Salinger could be forced to testify or risk having his suit dismissed.

The court did not say when it would rule.

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