Via giandujakiss : Salinger wins injunction barring U.S. publication of 60 Years Later: Coming Through the Rye (WSJ, NYT)

I took a quick read through the decision [PDF], which hinges on the judge's findings that the new novel is not sufficiently transformative to outweigh other factors supporting a copyright infringement claim (e.g. commerical nature of the use, amount & substantiality of the portion used, potential market harm to the original).

The court rejected the defendants' argument that the new book constituted a parody of the original and was therefore transformative. From what I can see, the judge reasoned as follows:

• Parody must comment on or criticize the original work itself (vs. using the original to parody society in general)
• Parody must be immediately recognizable as such to the average reader (vs. indirect or implied)
• Rehashing or even accentuating themes already present in the original work does not constitute parody
• While parody requires some borrowing from the original (e.g. characters, plot details, style) to be recognizable as such, the amount of borrowing should be limited to that necessary for parody or other transformative purposes
• N.B.: describing your work as a respectful tribute or sequel in interviews and promotional material will undercut your subsequent parody defense

Apparently the new novel purports to show that Holden Caufield hasn't changed in the 60 years since Catcher in the Rye, and illustrates that through a plot that loosely recapitulates the events of the original book. In the judge's opinion, the new narrative thus failed to add anything new to the original or provide meaningful critique or commentary -- it simply repeated and reinforced the themes of the original and its depiction of the protagonist.

The new book also incorporates Salinger as a character, which the defendants also argued constituted parody (critiquing Salinger's reclusiveness and insistence on tight control of his works) and thus supported their fair use defense. The judge rejected this argument on the grounds that a parody of the author does not necessarily constitute a parody of the original work itself, which is necessary to establish the transformative nature of the new work. She did find that the incorporation of Salinger as a character for purposes of critique did have some transformative value (albeit not as parody). However, the Salinger character only appears in a relatively small portion of the book, and could not be construed as the new work's primary purpose; moreover, the limited appearance of the Salinger character would be insufficient to justify the extent of the borrowing from the original.

So what does this mean for fanworks and fair use? I honestly don't believe that noncommercial fan fiction is in any significant danger these days. Even if other courts were to adopt the reasoning behind this decision, I just don't think that copyright holders really care about fan fiction any more (at least not the corporations holding copyright to media properties; I can't say the same for individual authors like Anne Rice).

But hypothetically, if a copyright holder did attempt to crack down on fan fiction and a fan writer attempted to defend their work in court, the judge's reasoning here suggests a very narrow scope for arguing transformative use. If I'm following her logic, a story that's primarily an extension of or extrapolation from the original work (i.e. missing scenes, further adventures, future fic) would not be deemed transformative; nor, for that matter, would genres that depart from canon unless they also directly and sufficiently comment on or critique the original. If applied rigidly, that criteria could exclude (for example) even most genderswap, slash, and porn.

In other words, this interpretation of "transformative" would tend to reward works that have the most immediately combative or critical relationship to their original sources. In this light, fannishness counts against you: in rejecting the parody defense, the judge reasons that "60 Years' plain purpose is not to expose Holden Caulfield's disconnectedness, absurdity, and ridiculousness, but rather to satisfy Holden's fans' passion for Holden Caulfield's disconnectedness, absurdity, and ridiculousness..." [emphasis added], citing statements from the defendants conveying respect and admiration for Salinger and Catcher (and their "status as 'American icons') as further evidence against a parodic purpose.

In this light, fans writing for other fans would be implicitly suspect in the eyes of a court. Fannishness here is incompatible with the muscular, antagonistic work of transformation that verges on the patricidal, the necessary wrestling with an original work rather than "'free riding on another's creations.'" The insufficiently transformative writer is precisely the writer whose work is insufficiently critical of the original, "'which the alleged infringer merely uses to get attention or to avoid the drudgery in working up somethng fresh...'." This sounds very much akin to the "why don't you just create your own characters and write original fiction?" objection to fanfic.

So regardless of whether this particular commercial unauthorized sequel to a work still under copyright merits protection as fair use, the reasoning which the judge applied to evaluating whether and to what degree 60 Years constituted a transformative use are disturbing from the perspective of fanworks and other forms of remix culture.