The 2nd U.S. Circuit Court of Appeals in Manhattan delivered another blow to Fredrik Colting's bid to prepare a U.S. release of "60 Years Later: Coming Through the Rye."
Colting's book was released in England, but Salinger sued last year to stop its distribution in the United States. The reclusive author died in January at age 91, still trying to protect his privacy after the release of "The Catcher in the Rye" in 1951 brought him unwanted public attention.
Colting, who writes under the name John David California and lives near Gothenburg, Sweden, has said his book is a commentary and parody of Salinger's novel, a fixture in classrooms for more than a half century.
The appeals court agreed with a lower court judge that the two books were substantially similar and that it would be difficult for Colting to prove he had changed Salinger's work enough that it can be published as protected "fair use" of copyrighted work.
The appeals court wrote that Colting and the companies distributing the book "are not likely to prevail in their fair use defense."
Still, the appeals court returned the case to the lower court, saying the judge had failed to make a required legal determination as to whether the Salinger estate would be irreparably harmed if Colting's book were published.
The case was brought to the appeals court to determine if the lower court's temporary order blocking U.S. publication could remain in place. A trial to determine if the temporary order can be made permanent has not yet occurred.
The appeals court noted that blocking Colting's book risked blocking speech protected by the First Amendment. But it added: "Some uses, however, will so patently infringe another's copyright, without giving rise to an even colorable fair use defense, that the likely First Amendment value in the use is virtually nonexistent."
The appeals panel said Colting's claim that the books are not substantially similar was "manifestly meritless."
Edward H. Rosenthal, a lawyer for Colting and SCB Distributors Inc., had argued before the 2nd Circuit in September that the book was "highly transformative with enormous amounts of commentary and criticism."
He said Friday he was confident that his client will win once the lower court judge hears all the facts.
"Then everyone will have an opportunity to read it," he said of Colting's book. "The district court ruled on very preliminary facts with no hearing, no depositions taken."
Marcia Beth Paul, who represented Salinger, had argued that publication of the book would violate her client's right not to publish any sequels of the novel. She also did not immediately return a call for comment.
"The Catcher in the Rye" tells the story of 16-year-old Holden Caulfield immediately after he is kicked out of a prep school just before Christmas and decides to explore New York City before returning to his family home.
In "60 Years Later: Coming Through the Rye," a character identified as Mr. C - presumed to be Holden Caulfield - escapes from a retirement home and has experiences similar to Caulfield's. The book also features an author named J.D. Salinger who contends with his character's enduring fame.
Colting has said in a court document that he did not "slavishly copy" Salinger when he wrote the novel, his first.
"I am not a pirate," he wrote.
His lawyers said in court documents that the author took "only the minimum amount of copyrighted material necessary to make his criticism and commentary."
By LARRY NEUMEISTER