Ruling Through the Rye

In 2009, 60 Years Later: Coming Through the Rye was published in the United Kingdom to decidedly lackluster fanfare. For all the cult popularity of J.D. Salinger’s Catcher in the Rye, it is a wonder that the publication of a sequel met with such a feeble reception. True, many fans of the original were outraged by the idea of Holden Caulfield as a septuagenarian on the run from his retirement home, but none so much as J.D. Salinger himself, who went to great legal lengths to ensure that Coming Through the Rye never set spine on this side of the Atlantic (Forgive me a little poetic license. It is available in Canada). Call it fan fiction or homage, what the Swedish writer Fredrik Colting (aka John David (J.D.) California) produced with his book, 60 Years Later: Coming through the Rye, was deemed copyright infringement and was banned in the United States.

Despite the court’s ruling, Colting maintained that his book was a literary criticism of Catcher and Salinger, and therefore should fall under fair-use protection. But they’re slippery little suckers, these subtle distinctions, and can often seem quite arbitrary. Parodies like Nightlight, a spoof on the Twilight Saga, sneak around infringement by changing the names of the characters and distorting events in the story, or, as Michael Rex did with his Goodnight Goon, altering the plot so significantly that a resemblance to the original, Goodnight Moon, is heard only through the familiar repetition and rhythm.

Or, consider what has come to be known as the “Wind Done Gone Case”. Nearly ten years before Colting’s trial, Margaret Mitchell’s estate sued Hougton Mifflin, the publisher of author Alice Randall’s novel The Wind Done Gone, for copyright infringement. The suit was brought on the grounds that the characters, scenes, plot and dialogue in The Wind Done Gone were highly reminiscent of, if not plucked directly from, the pages of Gone with the Wind. Randall, however, asserted that her work was a criticism of Mitchell’s depiction of slaves in the Civil War era. The courts, comparing one book against the other, agreed that Randall had created something transformative of the original and ruled fair-use. This was not the case with Salinger vs. Colting, even though nobody reading Colting’s book would likely confuse it with Catcher. But why wasn’t Colting granted fair-use as well? Both The Wind Done Gone and 60 Years Later, borrowed heavily from their predecessors, both reused characters and paraphrased dialogue, but one was cleared and the other banned.

Trying to get to the bottom of this literary conundrum, I asked my friend in the Information Sciences program at the University of Washington what she thought the distinction was between these two similar cases. She pointed out that the spirit of the books differed significantly. Where Randall approached her novel as a literary critic, giving a different voice to what she saw as marginalized and stereotyped African-American characters, Colting wrote his book as a fan continuing but not adding new perspective to the original story. We agreed that, though it makes sense, it’s equally strange that the objective of fair-use is to protect those who wish to criticize rather than they who wish to pay homage. Had Colting, observed one reviewer, created a character in middle-age who, despite the burden of his adult responsibilities, was trying to hold onto the ideals of his youth, he may have had a compelling case. Instead, what he wrote was no more than fan fiction, judged out of bounds by the court and the man who created that famous Catcher. –Leighanne

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