A United States appeals court on Friday vacated a lower court’s order to enjoin the publication of a novel described as a sequel to J. D. Salinger’s “Catcher in the Rye.” The appeals court sided with a district court’s judgment that Salinger’s lawyers would probably prevail on the merits but sent the case back to that lower court to re-evaluate whether the injunction should be ordered. In July, a United States District Court in Manhattan banned the United States publication of “60 Years Later: Coming Through the Rye,” a novel by “J. D. California,” a pseudonym for the Swedish writer Fredrik Colting. The novel, which centers on a 76-year-old character named Mr. C, does not mention Holden Caulfield by name, but the connection between Mr. C and the frustrated teenage protagonist of “Catcher in the Rye” was unmistakable, and lawyers for Salinger successfully argued that “60 Years Later” represented an illegal violation of the author’s copyrights. Salinger died in January at 91.
In arguments presented to the United States Court of Appeals for the Second Circuit in New York, lawyers for Mr. Colting said that the lower court’s injunction was an unconstitutional prior restraint on free speech and conflicted with the decision of the Supreme Court in the 2006 case eBay Inc. v. MercExchange L.L.C. In that case,the court ruled unanimously that a four-part test must be employed by a court to determine if a patent has been violated before an injunction can be issued. The tests warrant, for example, that a plaintiff show irreparable injury and that the public interest would not be disserved by a permanent injunction.
In its decision [.pdf file], the appeals court did not rule on the prior restraint question and remanded the district court’s injunction so it could apply the four-part test. Edward H. Rosenthal, a lawyer for Mr. Colting said: “We’re very pleased that the Second Circuit has confirmed what we’re arguing, which was that courts have to be very careful before they issue injunctions to stop books. We intend to continue to argue that the injunction’s improper here, and it’s important for this book to be made available to the public and read.” Mr. Rosenthal said the Salinger heirs had 10 days to keep the injunction in place.
In a statement, Marcia Paul, a lawyer for the plaintiffs, wrote:
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 in The Catcher in the Rye. His son and widow believe that the best way to preserve and protect Mr. Salinger’s work, as well as the rights of all creators and disseminators of intellectual property, is to vigorously pursue this case, following the road map the Court laid out in its opinion, to establish that the damage that will be caused by publication of this unauthorized sequel cannot be made whole by money, and that an injunction against its publication is both necessary and in the public interest.