J.D. Salinger’s Lawsuits and Censorship

Written by Leslie Gleue, December 2009.

In 1974, in his last public comments, Salinger told The New York Times that there was, “marvelous peace in not publishing.” He added: “I like to write. I love to write. But I write just for myself and my own pleasure . . . I’m known as a strange, aloof kind of man. But all I’m doing is trying to protect myself and my view.”

Lawsuit to Block Ian Hamilton’s Biography

In 1986 when Ian Hamilton was attempting to publish In Search of J.D. Salinger: A Writing Life, Salinger sued to prohibit the use of his letters in the biography.  A New York Times article written by Arnold Lubasch on January 30, 1987 included the following information about the suit in which Salinger prevailed:

The biography of J. D. Salinger was blocked yesterday by a Federal appeals court in Manhattan that said the book unfairly used Mr. Salinger’s unpublished letters. Reversing a lower court decision, the appeals court ruled in favor of Mr. Salinger, who filed suit to prohibit the biography from using all material from the letters, which he wrote many years ago.

In its 24-page decision, the United States Court of Appeals for the Second Circuit said the case focused on ”whether the biographer of a renowned author has made ‘fair use’ of his subject’s unpublished letters. Mr. Salinger wrote the letters to his friend and editor, Whit Burnett, and to several other people, including Ernest Hemingway.  “The biography,” the appeals court said, ”copies virtually all of the most interesting passages of the letters, including several highly expressive insights about writing and literary criticism.”

In a footnote, the appeal court’s decision cited a letter in which Mr. Salinger complained about an editor who praised one of his stories while rejecting it. ”Like saying,” he wrote, ”she’s a beautiful girl, except for her face.” Another letter criticized Wendell Willkie, the 1940 Presidential candidate, saying, ”He looks to me like a guy who makes his wife keep a scrapbook for him.”  The decision included another footnote referring to a 1943 letter in which ”Salinger, distressed that Oona O’Neill, whom he had dated, had married Charlie Chaplin, expressed his disapproval of the marriage in this satirical invention of his imagination: ”I can see them at home evenings. Chaplin squatting grey and nude, atop his chiffonier, swinging his thyroid around his head by his bamboo cane, like a dead rat. Oona in an aquamarine gown, applauding madly from the bathroom.” ”I’m facetious,” the letter added, ”but I’m sorry. Sorry for anyone with a profile as young and lovely as Oona’s.’

Mr. Hamilton, who wrote the biography despite Mr. Salinger’s refusal to cooperate with him, made use of the unpublished Salinger letters, which were written between 1939 and 1961. The recipients or their representatives donated the letters to university libraries, where they were discovered by Mr. Hamilton.

When Mr. Salinger learned that the letters were being used in the biography, he registered them for copyright protection and objected to the biography’s publication unless all of the material from the letters was deleted.  In response to Mr. Salinger’s objection, the appeals court observed, Mr. Hamilton and Random House revised the original galleys of the biography by paraphrasing much of the material that had previously been quoted from the letters.  The appeals court continued, however, that Mr. Salinger identified 59 instances where the revised biography contained ”passages that either quote from or closely paraphrase portions of the unpublished letters.”

Mr. Salinger then sued the biographer and publisher, charging that the use of his letters involved copyright infringement and unfair competition.  Judge Leval of the lower court rejected Mr. Salinger’s request for an injunction in the suit, ruling that the biography had made only minimal use of material that was entitled to copyright protection. But he temporarily held up publication to permit an appeal.  In the subsequent decision by the appeals court, Judge Newman noted that ”the author of letters is entitled to a copyright in the letters, as with any other work of literary authorship.”  The book was finally published in 1988 by Random House with the letters’ contents paraphrased.

Blocked Screening of Pari

In 1995, Dariush Mehrjui, an Iranian film director released an unauthorized adaptation of Franny & Zooey.  Salinger and his lawyers could not sue for copyright infringement since it was outside of U.S. jurisdiction, but Salinger blocked the planned screening of the film at the Lincoln Center in 1998.  A New York Times article published on November 21, 1998 by Jesse McKinley, offers the following descriptions of the matter:

The film,  Pari, was to have been shown last night as part of three-week festival of Iranian cinema. But Richard Pena, the programming director for the film society, said his organization had received a letter on Monday warning that screening the film would constitute a breach of copyright. Mr. Pena said the film, made in 1995, had been shown at festivals in Europe and at a retrospective at Lincoln Center in 1996. ”It was assumed there was no prohibition on the film,” he said. ”It’s been around for a while.”

But R. Andrew Boose, a lawyer for Mr. Salinger, said the reclusive writer had only learned of the film’s existence last week after several published articles, including one in The New York Times, referred to the connection between Pari and Franny & Zooey. ‘

‘We’re not looking for publicity,” Mr. Boose said. ”They simply did not seek permission from the copyright owner of the novel.”

Pari, directed by Dariush Mehrjui, tells the story of three brothers and a sister confronting the issues of art and religion in contemporary Iran. In the film, the action of the sister, Pari, mirrors that of Mr. Salinger’s character Franny, including her troubled relationship with her fiancé.

Mr. Mehrjui, who is one of his nation’s most respected filmmakers, said he was stunned by the cancellation. ”This reaction is really quite bewildering,” he said. ”I don’t want to distribute the film commercially. It’s a kind of cultural exchange. I just want to let the film be seen for the critics and the people that follow my work.”

The director said the film was indeed ”loosely based” on Franny & Zooey, but he added that he had written to Mr. Salinger seeking permission to use the material before making the movie. ”I wrote him a letter indicating that I was just a small filmmaker doing an adaptation,” he said. ”But I did not hear back, so I just continued and made it,” he said.

More recently, Mr. Salinger’s literary and legal representatives shut down a Web site devoted to the work of the writer, whose most famous novel, The Catcher in the Rye, is a staple of high school and college classrooms nationwide.

*A New York Magazine article posted after Salinger’s death has posted commentary and snippets of the film.

Publication of “Hapworth 16, 1924”

In 1996, Salinger sought out a small publishing group called Orchises located in Alexandria, Virginia to publish his final story, Hapworth 16, 1924.  A brief mention printed in the Washington Business Journal on November 15, 1996 included the following details about the potential publication:

J.D. Salinger’s last story — and likely least read — is on target to be published in January by Orchises Press in Alexandria. Previously, “Hapworth 16, 1924” had only been printed in a 1965 New Yorker magazine.

Orchises founder and editor Roger Lathbury, an English professor at George Mason University, is mum on how he got the rights. But he did note that it’s a legitimate authorized version, for which Salinger still holds the copyright. There are several unsettled issues that are being finalized, he added.

Lathbury wouldn’t say if he has dealt directly with Salinger, the enigmatic author of “The Catcher in the Rye” who has been in seclusion for the past three decades.

Salinger’s agent, the Harold Ober Agency in New York, did not return calls. [We didn’t bother trying to reach Salinger.]

Lathbury acknowledged, somewhat begrudgingly, that the book will help his 13-year-old business, which has published some 60 works so far, mostly poetry.

Amazon listed the book on its website, but after years and years of its publication date being pushed back, it is no longer listed on the site and has yet to be published by the company.

Following Salinger’s death, Lathbury lamented the mistakes he made during the process in an April 4, 2010 article in New York Magazine. Of particular note, Lathbury writes:

I had spotted a few inconsistencies within the text, and I brought them up, fearing the wrath of the lion. Yet he said, mildly enough, “No, no. I want it left as it is.” He reminisced about reading The New Yorker page proofs in the car of his editor, William Shawn, while Shawn attended an event at his son’s prep school.

60 Years Later, Coming Through the Rye

In June 2009, Salinger consulted lawyers about the upcoming U.S. publication of an unauthorized sequel to The Catcher in the Rye written by Swedish book publisher Fredrik Colting under the pseudonym J. D. California.  California’s book is called 60 Years Later: Coming Through the Rye and appears to pick up the story of Salinger’s protagonist Holden Caulfield.  Subsequently, Salinger’s attorneys filed a lawsuit. On May 30, 2009, The Daily Telegraph published the following account of the lawsuit that Salinger filed upon hearing of the unauthorized sequel:

Just as Mr. Salinger’s book involved the young Caulfield’s reminiscences about his time wandering the streets of New York City after expulsion from an elite prep school, the new version sees Mr. C musing in similar vein after escaping his nursing home to roam the same terrain. A Salinger figure even makes an appearance in “60 Years Later” in an imaginary encounter with a hermit writer. And the book is dedicated to J.D. Salinger with the provocative message “the most terrific liar you ever saw in your life.”

Author John David California, whose previous jobs include a stint as a gravedigger, said the message was described as a Caulfield-style tribute to a “great inspiration”. He added: “He’s a great writer who influenced the entire world with the words he made up. It’s a tribute the way Holden would have said it.”  Mr. Salinger, 90, who has lived in isolation in rural New Hampshire for more than half a century, making just one brief public comment in that time, has unsurprisingly offered no thoughts on this unsought homage to his work. Ironically, by instructing lawyers, he may simply have given it unintended publicity.

Phyllis Westberg, his literary agent at Harold Ober Associates in New York, told the Sunday Telegraph: “The matter has been turned over to a lawyer.” She declined to comment further.  Despite the clear parallels, Mr. California and his publishers said they were confident that the new book would not encounter legal problems.  “The stories are so different that I don’t think you can argue this is a sequel,” Mr. California said. “This is such an American response. It’s just words. I have written about Mr. C, a 76-year-old man. Salinger wrote a book about a 16-year-biy named Holden Caulfield. It’s a story about growing old and old age and finding yourself in the world.”

“But this is no spoof,” said Windupbird’s Fredrik Colting. “We are not concerned about any legal issues. We think ’60 Years Later’ is a very original story that compliments ‘Catcher in the Rye’.  “We have not heard from Salinger’s U.S. agent or representatives. We’ve received one email from Salinger’s British agent [Aitken Alexander], referred to us from our agent, saying they had a hard time locating the publisher. We replied to that, giving all our contact info and haven’t heard anything since.”

Judge Deborah A. Batts of a Manhattan District Court found in favor of Salinger in a 37- page ruling. The case and ruling is detailed in the following article written by Sewell Chan for the New York Times on July 1, 2009:

In a 37-page ruling, Judge Batts issued a preliminary injunction — indefinitely barring the publication, advertising or distribution of the book in this country — after considering the merits of the case. The book has been published in Britain. Mr. Colting’s lawyers argued, among other things, that the new work, titled 60 Years Later: Coming Through the Rye, did not violate copyright because it amounted to a critical parody that had the effect of transforming the original work.

Judge Batts rejected that argument, writing,

“The Court finds such contentions to be post-hoc rationalizations employed through vague generalizations about the alleged naivety of the original, rather than reasonably perceivable parody.”

The judge’s ruling weighed literary arguments made by both sides in the dispute. “To the extent Colting claims to augment the purported portrait of Caulfield as a ‘free-thinking, authentic and untainted youth,’ and ‘impeccable judge of the people around him’ displayed in ‘Catcher’ by ‘show[ing] the effects of Holden’s uncompromising world view,’ ” Judge Batts wrote, citing a memo submitted by Mr. Colting, “those effects were already thoroughly depicted and apparent in Salinger’s own narrative about Caulfield.”

Judge Batts added:

“In fact, it can be argued that the contrast between Holden’s authentic but critical and rebellious nature and his tendency toward depressive alienation is one of the key themes of Catcher.  It is hardly parodic to repeat that same exercise in contrast, just because society and the characters have aged.”

While the case could still go to trial, Judge Batts’s ruling means that Mr. Colting’s book cannot be published in the United States pending the resolution of the litigation, which could drag on for months or years. Marcia B. Paul, a lawyer for Mr. Salinger, declined to comment on the decision.

Mr. Salinger, who has not published any new work since 1965, has sued several times to protect his writing, including successful efforts to stop publication of some of his personal letters in a biography and to halt a staging of Catcher by a college theater company in San Francisco. He has also turned down requests, from Steven Spielberg, among others, for movie adaptations of Catcher.

In an article published on July 24, 2009 by Andrew Albanese in Publisher’s Weekly, it was reported that an appeal was filed on behalf of Mr. Colting:

Lawyers for Swedish author Fredrik Colting and his U.S. distributor, SCB Distribution filed an appeal on July 23 with the Second Circuit Court of Appeals arguing that a July 1 injunction barring publication of Colting’s 60 Years Later: Coming Through the Rye, is an “impermissible prior restrain and an unwarranted extension” of copyright protection. “Without a shred of evidence of harm, the Plaintiff, the District Court has taken the extraordinary step of enjoining the publication of the book,” court documents read. “But [the book] is a complex and undeniably transformative comment on one of our nation’s most famous authors, J.D. Salinger, his best known creation, Holden Caulfield, and his most celebrated work, The Catcher in the Rye.

The appeal seeks “urgent relief,” with attorneys arguing that the injunction causes harm to the defendants. “If 60 Years Later cannot be published in the U.S., Colting’s reputation as an author will be tarnished and SCB’s failure to deliver the book will harm its reputation with its customers,” the appeal reads. “Substantial time and money Defendants invested in the marketing and promotion…and advertising, will be lost. The timing of the publication in the U.S. was set to take advantage of the publicity surrounding the book’s publication in London this Spring, and the injunction is causing an irretrievable loss of the momentum.” By contrast, “the record is completely devoid of any evidence that Salinger has suffered or will suffer any harm as a result of the publication.”

A July 15, 2009 article appearing in Slate magazine suggests that Colting’s novel had little literary merit of its own.

The case is still pending appeals from Mr. Colting, according to an update from the New York Times on April 30, 2010.

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