Results-Oriented Jurisprudence: A Second Circuit Panel Meets J. D. Salinger Coming Through the Rye

Kathleen (Kate) M. O'Neill, University of Washington School of Law

Abstract

ABSTRACT The Second Circuit’s 2010 decision in Salinger v. Colting has been widely noticed for vacating a preliminary injunction J. D. Salinger obtained against distribution in the U.S. of Fredrik Colting’s novel, 60 YEARS LATER – COMING THROUGH THE RYE. In an opinion by Judge Guido Calabresi, the panel adopted the standard for equitable relief from eBay, Inc. v. MercExchange (U.S. 2006), overruled circuit precedent, and held that henceforth district courts must find, not presume, that irreparable harm is in fact likely before enjoining a copyright defendant’s activities. This is the first article to observe that what the Second Circuit gave copyright defendants procedurally it took away substantively. In remanding, the court acknowledged that Salinger had no evidence of financial harm but opined that Colting’s novel invaded Salinger’s “right not to speak” and that such an invasion unquestionably constituted irreparable harm. I begin by showing that the district court simply misread Colting’s metafiction, and I suggest two practical strategies litigators might use to avoid such poor literary fact-finding. Then I discuss the appellate panel’s rhetorical move. Legally and factually inapt, the rhetoric undermines copyright fair use by enhancing copyright owners’ supposed First Amendment interests at the expense of users’ and the public’s. This is exactly backwards. By remanding with this rationale, the court sheltered from further review the district court’s dubious assessment of the merits while simultaneously expanding copyright to protect holders’ personal preferences. Plainly, both courts deferred to a high-status, egg-shell author and disapproved of a bumptious upstart – perhaps with some cause – but neither court should have used copyright doctrines to sanction the latter, and the appellate court should not have promoted an expansive property-rights theory of copyright under the guise of regulating equitable remedies.