Mark Hamblett via Law.com; Federal Judge Mulls Copyright Status for Salinger's Holden Caulfield:
"Marcia B. Paul of Davis Wright Tremaine, representing Salinger, won the first part of the hearing by convincing [Judge Deborah] Batts, who said she had read both books, that there was a "substantial similarity" between the two works.
Paul and the attorney for Colting and his publisher, Edward H. Rosenthal of Frankfurt Kurnit Klein & Selz, disagreed over the degree of copyright protection that can be afforded the characters within a book.
Rosenthal said there is case law protecting ubiquitous animated figures such as Superman, but that the 2nd U.S. Circuit Court of Appeals and other courts have not extended the law's protection to purely literary or "words on a page" characters.
Paul responded, "That's not the law. A sufficiently delineated character should be protected."...
"It is hard to separate Holden Caulfield from the book," [Judge Deborah Batts] said. "It would seem that Holden Caulfield is copyrightable."
The judge then turned to the question of whether "60 Years Later" is nonetheless protected by the fair use doctrine.
Here, the burden shifted to Rosenthal, who noted that the point of copyright protection is to "promote the progress of science and the arts ..."
"But not stealing," Batts interjected...
The argument that "60 Years Later" was a work of literary criticism was not helped by the fact that Colting, known as "John Doe" in the pleadings, had called the book "a sequel" before he had time to consult with lawyers for his U.S. publisher, SCB Distributors...
Paul also said fair use protection presumes good faith and fair dealing."
http://www.law.com/jsp/article.jsp?id=1202431554331
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