Updating a prior posting: When is a Fictional Character Copyrightable?

On July 1, 2009, District Court Judge Deborah Batts entered an Order in the Salinger v. Fredrik Coulting, et al., No. 09-CV-5095 (S.D.N.Y.) case holding that the new book focused on Holden Caufield as a 76-year-old man did not fit within the narrow “fair use” exception to copyright infringement. (Copy of the complaint can be found here.) The order also preliminarily enjoins the sequel’s author (publishing under the pseudonym J.D. California) and publisher from “manufacturing, publishing, distributing, shipping, advertising, promoting, selling or otherwise disseminating any copy of 60 Years [the book] or any portion thereof, in or to the United States.” Order at 37. The injunction may become permanent following a full trial on the merits.

Essentially, the court rejected defendants’ arguments that the “sequel” was a parody commenting on the original work and on the nature of Holden Caufield’s character. Importantly for the analysis of whether fictional characters are separately copyrightable, the Court held that “Plaintiff possesses a valid Copyright in the novel The Catcher in the Rye, that the character of Holden Caulfield . . . is sufficiently delineated so that a claim for infringement will lie.” Opinion, at 2 (citations omitted).

The opinion also addresses in detail the fair use factors and whether any other part of the sequel could be considered an acceptable parody, and thus not a work infringing the original copyright.

Additional coverage of the opinion can be found in the following sources, among other places:

* Ashby Jones, “Holden Caulfield Stays Young: Salinger Wins Copyright Suit,” The Wall Street Journal’s Law Blog, July 1, 2009.

* Sewell Chan, Ruling for Salinger, “Judge Bans ‘Rye’ Sequel,” New York Times, July 1, 2009.

* Larry Neumeister, “Judge blocks publication of Salinger spinoff book,” Associated Press, July 1, 2009 (as published on FindLaw.com)