The Preliminary Injunction against “60 Years Later” in light of Lennon v. Premise Media Corp.

June 25, 2009

Courts move slowly, so I’m sure it will be a while before we hear the outcome of J.D. Salinger’s copyright infringment lawsuit against the author of “60 Years Later.”  Upon further research, it is starting to seem that, even granting that plaintiff’s contention that 60 Years is a “rip-off” and is neither parody nor criticism or Salinger’s original, I would venture that it still falls squarely within the bounds of fair use.  Despite being commercial in nature, this unauthorized sequel by all accounts seems to be sufficiently transformative of the original work and does not diminish the value of the original.

There is an interesting New York case that is on point.  In Lennon v. Premise Media Corp, Yoko Ono sued the makers of the recent Ben Stein movie “Expelled” for using a 15 second snippet of Imagine without permission:

Plaintiffs contend that defendants’ use of “Imagine” is not transformative because defendants did not alter the song, but simply “cut and paste[d]” it into “Expelled.” As the foregoing discussion illustrates, however, this argument draws the transformative use inquiry too narrowly. To be transformative, it is not necessary that defendants alter the music or lyrics of the song. Indeed, defendants assert that the recognizability of “Imagine” is important to their use of it. (Sullivan Decl. P 6.) Defendants’ use is nonetheless transformative because they put the song to a different purpose, selected an excerpt containing the ideas they wished to critique, paired the music and lyrics with images that contrast with the song’s utopian expression, and placed the excerpt in the context of a debate regarding the role of religion in public life. Lennon v. Premise Media Corp., L.P., 556 F. Supp. 2d 310

Thus, the court denied a preliminary injunction because “defendants are likely to prevail on their fair use defense, plaintiffs have failed to show, on the basis of the record developed to date, a clear likelihood of success or even a simple likelihood of success on the merits of their copyright infringement claim.”(ibid.)

Numerous parrallels can be drawn between Lennon and the Salinger case.  60 Years seems to be prima facie to be transformatve, if only insofar as the main character has been aged 60 years and is in a different setting that the original Catcher in the Rye.  Furthermore, “the effect of the use upon the potential market for or value of Catcher could only be miniscule considering what an important place it has in the world of literature, 60 Years poses no serious danger to it.

So it would seem, based on the holding in Lennon, that the recent preliminary injunction against the publication of 60 Years was incorrect, and furthermore that the likelihood of Salinger’s success of the merits here is poor.

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