## Facts

- J.D. Salinger authored *The Catcher in the Rye* (1951), a copyrighted, highly successful novel featuring the character Holden Caulfield and a distinctive narrative voice.
- Fredrik Colting (writing as “John David California”) authored *60 Years Later: Coming Through the Rye* (2009), slated for U.S. publication.
- The later work depicted an elderly figure resembling Holden Caulfield and a fictionalized Salinger character connected to that figure.
- Salinger alleged the later work was an unauthorized derivative sequel that copied protected elements of *The Catcher in the Rye*, including characters, narrative structure, and scenes; Salinger also asserted unfair competition.
- Defendants contended the later work was transformative commentary criticizing Salinger and reflecting on Salinger’s relationship to his novel and character.
- Salinger moved in the Southern District of New York for a preliminary injunction barring U.S. publication, advertising, and distribution.
- The district court granted a preliminary injunction, finding Salinger likely to succeed on infringement and rejecting fair use as unlikely; it presumed irreparable harm from likely success.
- Defendants appealed; after Salinger’s death, trustees of his literary trust were substituted as appellees.

## Issues

1. Whether the district court correctly assessed likelihood of success on copyright infringement and the unlikelihood of defendants’ fair-use defense under 17 U.S.C. § 107.
2. Whether a court may presume irreparable harm upon finding likely success on the merits in a copyright case, or instead must apply the traditional four-factor equitable test for preliminary injunctive relief after *eBay* and *Winter*.

## Decision

- The Second Circuit vacated the preliminary injunction and remanded because the district court applied an incorrect legal standard by presuming irreparable harm.
- The Second Circuit held that the *eBay* four-factor equitable test applies to copyright cases and applies to preliminary injunctions, eliminating categorical presumptions of irreparable harm.
- The Second Circuit affirmed the district court’s conclusion that Salinger was likely to succeed on the merits and that defendants were unlikely to succeed on a fair-use defense.
- The court declined to resolve First Amendment prior-restraint arguments, finding them unnecessary given the change in the injunction standard.

## Legal Principles

- A copyright plaintiff seeking a preliminary injunction must satisfy the traditional equitable requirements, including a showing that irreparable harm is likely absent an injunction and that legal remedies are inadequate.
- Courts may not treat injunctive relief in copyright cases as nearly automatic upon a showing of likely success; presumptions of irreparable harm are improper.
- Likelihood of success on infringement and entitlement to injunctive relief are distinct inquiries; success on the merits does not itself establish irreparable harm, balance of hardships, or public interest.
- In assessing fair use, courts consider the statutory factors, including whether the defendant’s asserted transformative or critical purpose is credible, the creative nature of the original work, the extent of protected expression taken (including character and voice), and potential harm to markets for authorized derivative works.

## Conclusion

The Second Circuit required copyright preliminary injunctions to be governed by the *eBay*/*Winter* equitable framework without presumptions of irreparable harm, vacating and remanding the injunction while leaving intact the district court’s determination that the plaintiff was likely to prevail and the defendants were unlikely to establish fair use.


Salinger v. Colting, 607 F.3d 68 (2d Cir. 2010)