June 19, 2009 - 7:02 am



You know writers: When they're sore at you, they sue. At least Fredrick Colting, a.k.a. John David California, knows that now. He has joined the company of those taken to court for copyright infringement by Cornish resident J.D. Salinger.

Writing as California, Colting, who lives in Sweden, is the author of 60 Years Later: Coming through the Rye. In what the author calls a sequel to Catcher in the Rye, Holden Caulfield, the iconic Salinger character who first made his appearance in 1951, is 76 years old. Like Caulfield, Colting's "Mr. C" has escaped an institution and taken to the streets of New York City. In Caulfield's case it was a prep school; in Mr. C's, a nursing home.

Colting's book has been published in England, but it is not available in the United States. It updates the lives of several characters, among them Caulfield's sister Phoebe, with whom he reunites in old age. The subtitle of Colting's book is "An Unauthorized Fictional Examination of the Relationship Between J. D. Salinger and his Most Famous Character." Its new fictional characters include the 90-year-old Salinger himself.

On Wednesday, U.S. District Judge Deborah Batts announced that she found significant similarities between the works and would take time to review copyright law before issuing a ruling that's expected later this month. Lawyers who specialize in intellectual property are split but say the case could be a close call.

Did Colting violate Salinger's copyright by appropriating his character and much of his plot? Or is his work, in legal jargon, "transformative?" Did he create a parody of Catcher in the Rye or expand on the book in a way that is a commentary on its characters and ideas? If the latter is true, Colting will have made "fair use" of Salinger's classic.

We treasure Salinger for creating a work that has embodied the angst the innocent experience when they grasp the compromises and hypocrisy of their elders. And we are enormously grateful that he has protected the Holden Caulfield who lives on in the memory of millions by refusing to allow his book to be dramatized or turned into a movie. But fictional characters are not legally entombed like bugs in amber. Their lives can continue without their author's permission, if those who continue them are sufficiently creative.

In this case, Colting, and the First Amendment's protection of free speech, should prevail.

There are four basic tests that must be met for Salinger to stop the publication of Colting's book. The first is whether the work is indeed transformative in the same way as The Wind Done Gone, a retelling of Gone With the Wind from the point of view of a slave at Tara. The estate of Margaret Mitchell, creator of Rhett Butler and Scarlet O'Hara, sued over that use of Mitchell's work and lost.

Judge Batta will also consider how much of Salinger's work Colting appropriated and if Colting made artistic use of material that wasn't his, much like Andy Warhol or, more recently, artist Shephard Fairey, creator of the iconic Obama HOPE poster, did. She will also have to decide whether Salinger was damaged economically. That would occur if Colting's book reduces the demand for Salinger's bestseller, which it won't. In fact, it could increase sales.

From the material cited in court, Colting's book does not appear to be "a rip-off pure and simple," in the words of Salinger's lawyer. It appears to be an intelligent and creative attempt to consider a possible future for one of the most famous characters in American literature and the impact he's had on his reclusive creator.

The book should be published.