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Salinger v. Colting

Topic(s): First Amendment
Date Of Involvement: 08/03/2009

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This case raises fundamental questions about the extent to which private and corporate interests can use intellectual property law to squelch public commentary and commercialize aspects of the common culture. Author J.D. Salinger claims that a novel infringed his copyright simply because it includes a character based on Holden Caulfield, the protagonist from The Catcher in the Rye. The district court enjoined publication of the novel. On appeal, Public Citizen filed a brief supporting reversal. We argue that the district court’s decision expanded the scope of copyright protection far beyond its legal limit—the fixed, creative expression embodied in a particular work—and into the realm of concepts and ideas. In so doing, the court’s infringement analysis ran afoul of copyright’s fundamental idea-expression dichotomy and the First Amendment.

On April 30, 2010, the U.S. Court of Appeal for the Second Circuit remanded the case to the district court on the grounds that the district court had used the wrong test for granting a preliminary injunction based on intervening Supreme Court authority.