COPENHAGEN – Windupbird Publishing owned by Swedish author Fredrik Colting, alias John David California, promises that its books will “tickle your feet and yank your soul.” But American author J.D. Salinger is not amused and has indeed been wound up by Colting’s latest book, which he says is infringing on the copyright of his best-seller, “The Catcher in the Rye.” A New York court recently sided with Salinger, but Intellectual Property Watch talked to Colting about why the battle is bound to go on.

Colting said he wants to appeal the New York ruling this week. “I believe we will win,” he said. The appeal will go to the Circuit Court of Appeal, in which there will be three judges, he said. The case is expected to come up in September.

After the New York court decision on 30 June, the book was banned in the United States. “This is very serious,” the 33-year-old Colting told Intellectual Property Watch, adding that this is a limitation on freedom of speech. “It is a question of censorship,” he said, arguing that the fact that the book has been stopped even before it was published makes the matter even more serious.

The book had been available in the United Kingdom for some weeks when the New York court case started, and sales were suspended for a while. It is now on sale again and available in English across Europe via Amazon.co.uk. This week it will officially be launched in Sweden. Colting notes that the ruling from New York covers the United States only.

But why has Salinger taken issue with Colting’s book to the extent that he has actually taken him to court?

Colting has used the same protagonist in his book called, “60 Years Later: Coming Through the Rye” as Salinger used in his 1951 novel, “Catcher in the Rye.” But while Holden Caulfield was indeed the main character in “Catcher,” Colting is writing about the relationship between Salinger and his fictional character, Mr C. He calls the book a “modern Frankenstein,” as it focuses on how an artist “is creating something he in the end does not have any control over.”

When asked why Colting felt the urge to write this book, he said he has pondered the idea of “what happens to characters after one has created them?” He wanted to use Salinger, who himself has become a character, and Caulfield to illustrate this.

In “60 Years,” Caulfield, or Mr. C as he is called, is 67 years old. He is called back to life by Salinger, since, as his character explains it in the book, “You cannot kill what doesn’t exist”. The character Caulfield has been “quite a curse” for Salinger in real life, ever since his 1951 debut novel became a huge success, Colting said. In many ways, the success and the character of Caulfield became larger than what Salinger was able to handle, the Swedish author said.

”Salinger has not been willing to talk [about Catcher], he has not given any interviews and he has refused to sell the movie rights to the book, which Stephen Spielberg among others have been very eager to get his hands on,” said Colting. “He lives like an hermit.” Salinger is today 90 years old.

Colting admits that his book is “written in the same style” as Catcher because Caulfield, for example, “speaks in a particular manner.” But he maintains that the big difference between the two books is that in his book, Salinger is himself one of the protagonists. He also uses other characters from Catcher, such as the sister Phoebe and the old friend Stradlater, Colting noted, but this is to illustrate how all has changed and developed since the book was first published. “I also have 25 new characters in my book,” he said, emphasising that the media has described the book as a follow-up to Catcher.

”I am not really sure he [Salinger] has read my book. I think that if he had, he would understand and appreciate the points that I am trying to make with it,” said Colting.

Copyright Quandary

When asked whether he had a feeling of crossing the copyright line when he wrote the book, Colting answers a hesitant “nyes.” Still, “I knew the book would generate a large interest, but I had not expected Salinger to take me to court.” This is quite an unusual thing to do in Sweden, he added.

When asked whether he has lifted any passages directly from Catcher, Colting replied, “No, I haven’t lifted anything. In the law suit it says I used some of Salinger’s style of writing and the way that Holden speaks. But to me that is insane … [M]ost books are composed of the same words anyway, and if you have a certain style of a book, if it is a detective novel, for instance, you compare those to each other and they are very much alike.”

”It’s impossible to write something that is not similar to something else. But I never copied anything. It’s totally different in that way,” he said.

Colting said that over a thousand academic papers have been written about Catcher, “but nobody reads these.” He added that the fact that he has written what he regards a literary critique as a novel attracts more attention partly because it can have commercial interest.

But Colting is convinced the copyright protection in this case is going too far. “It is a weird literature world we live in if we need judges to tell us what we should read or not,” he said. “[W]hen I wrote the book it was only about the book but now it has become about copyright and the right to speak one’s mind. I don’t think anyone in the world wants to have a judge tell them what they can and can’t read. So yes, it has become much bigger now. It is more important issues than just my book,” he said.

The issue seems to be whether plagiarism constitutes word-by-word copying or whether it could also apply to using the same story line and style, as the judge appears to argue.

Ironic Similarities

Ironically, there are significant parallels between Catcher and 60 Years. Although Colting has written many comics books (for example, “The Macho Man’s Drinkbook: Because Nude Girls and Alcohol Go Great Together”), he considers this to be his debut book, as Catcher indeed was for Salinger. But even more interestingly, because of what was considered strong language back in 1951, Catcher was also banned in the United States. “Now he [Salinger] does the same thing with my book,” Colting says, adding that it will probably only make the book more popular as people want to read what is banned.

Colting says the entire world builds on the idea of inspiring others and building on other people’s work, and it is a “serious issue” if this flow of creativity is to be stopped by overly stringent copyright laws.

”I do believe in and support copyright and I do not think everything should be free,” Colting says. “But one creates [something] to inspire other people to again create something on their own.”

It could of course be that Salinger took Colting to court because he felt personally offended by the book in which he is featured. But Colting said that if this were the case, it would not have any “legal meaning” as it would not constitute a valid reason for stopping creative works from being published.

The Ruling

According to the ruling [pdf], Salinger argues that 60 Years is a “derivative work” of Catcher and Mr C is an infringement of Salinger’s Caulfield. Colting, on the other hand, argues that his novel and Mr C “constitute fair use” of Salinger’s copyrighted work. It “comments directly on (and criticises) Catcher and its author” and is an “example of parody.” Colting has used Salinger as a character to criticise his “iron-clad control over his intellectual property,” the court document ruling quotes him, agreeing that this is transformative but rejecting the idea that 60 Years as a whole is so.

The whole idea behind copyright is to “promote the Progress of Science and useful Arts,” and to ensure that this ideal was met and censorship was prevented, the “Fair Use Doctrine” was set up in the United States. It was later linked to a four-factor test. These are: The purpose of the use (commercial or non-profit), the nature of the copyrighted work, the amount used in relation to the copyrighted work as a whole, and the effect of the use on the market or value of the copyrighted work, according to the court case document.

Colting’s book failed the commercial test, the court said. Also, it failed the test of being a parody of the original work, of which the court document lays out a detailed discussion. “‘[P]arody may qualify as fair use only if it draws upon the original composition to make humorous or ironic commentary about the same composition. It is not enough that the parody use the original in a humorous fashion, however, creative that humour may be’…,” it states. It was also a problem that 60 Years did not only build on the work of Catcher, but also Salinger himself.

”To the extent Defendants contend that 60 Years and the character of Mr C direct parodic comment or criticism at Catcher or Holden Caulfield, as opposed to Salinger himself, the Court finds such contentions to be post-hoc rationalisations employed through vague generalisations about the alleged naivety of the original, rather than reasonably perceivable parody,” the court document says. It also states that Colting did not call the book a parody before the court case. The document even states that observations and reflections that once came from 16-year-old Caulfield but now from 76-year-old Mr C “seem pathetic.”

60 Years also failed the third fair use test as, “Defendants have taken much more from Salinger’s copyrighted works than is necessary to serve their alleged critical purpose,” the court document says. As for the fourth factor, the court says that Salinger holds the right to publish a sequel, although he has said he has no plans to do so, and 60 Years could substantially harm the market for such a follow-up because of confusion and lack of novelty.

Catcher still sells some 250,000 copies annually, according to Books and Writers, which summarises the plot in Catcher - for those of our readers who have forgotten - as such: “The story is written in a monologue and in lively slang. The 16-year old restless hero - as Salinger was in his youth - runs away from school during his Christmas break to New York to find himself and lose his virginity. He spends an evening going to nightclubs, has an unsuccessful encounter with a prostitute, and the next day meets an old girlfriend. After getting drunk he sneaks home. Holden’s former schoolteacher makes homosexual advances to him. He meets his sister to tell her that he is leaving home and has a nervous breakdown.”