Monday, May 03, 2010

Appeal in Salinger copyright case
BBC News

Left - JD Salinger in 1951
JD Salinger became a recluse after Catcher in the Rye was published

An appeal against the banning of a book promoted as a sequel to JD Salinger's Catcher in the Rye has been given the go-ahead.

In July, a judge in Manhattan's federal court blocked the US publication of 60 Years Later: Coming Through The Rye by Swedish novelist Fredrik Colting.
On Friday, an appeals court sent the case back to the federal court.
But in its ruling, the appeals court made it clear it expected Salinger's trust to prevail.
"Most of the matters relevant to Salinger's likelihood of success on the merits are either undisputed or readily established in his favour," the court ruled.

Salinger died in January at the age of 91.

And from PublishersLunch:
Even Though Colting's Book "Likely" Infringes Salinger, Appeals Court Tells Judge to Consider Injunction More Thoroughly
On Friday the Second Circuit Court of Appeals struck down the injunction from last July banning publication of Frederick Colting's 60 Years Later: Coming Through the Rye and returned the case to the original District Court, even though the appellate judges agreed that "that Salinger is likely to succeed on the merits of his copyright infringement claim." (They also agree that the defendants "are not likely to prevail in their fair use defense.)

So Colting is still expected to eventually lose in court--the question is whether the injunction barring publication while the case moves through the judicial process will stand. The District Court has been ordered to employ more thoroughly a four-part test before deciding on an injunction. The preliminary injunction stays in place for 10 days, during which the plaintiffs can apply for temporary restraining order pending the newly-ordered hearing.

The Appeals Court ruled here on legal or technical grounds, and admittedly reversed what has been traditional practice in this Circuit. "Traditionally, this Court has presumed that a plaintiff likely to prevail on the merits of a copyright claim is also likely to suffer irreparable harm if an injunction
does not issue."

But in light of a Supreme Court ruling in 2006 in the case eBay, Inc. v. MercExchange, they found that a stricter standard must apply before granting an injunction.

In taking a second look, the lower court must "actually consider the injury the plaintiff will suffer if he loses on the preliminary injunction but ultimately prevails on the merits, paying particular attention to whether the 'remedies available at law, such as monetary damages, are inadequate to compensate for that injury."

In the past, in copyright infringement cases, the judges note "the harm to the plaintiff's property interest has often been characterized as irreparable in light of possible market confusion." But under the new standard, "courts must not simply presume irreparable harm. Rather, plaintiffs must show that, on the facts of their case, the failure to issue an injunction would actually cause irreparable harm."

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