By: David P. Miranda and Caroline Ahn



The renowned and reclusive author, J.D. Salinger, in the final year of his life, left another legacy with his novel The Catcher in the Rye (“Catcher”) by reshaping the preliminary injunction standard in copyright cases. Published in 1951, Catcher tells a coming-of-age story from the perspective of the disaffected 16 year-old Holden Caulfield, as he wanders around in New York City after being expelled from prep school. Catcher became an instant success and many later sought to adapt the work into film or otherwise create derivative works from it. Salinger rejected all such offers and explicitly instructed his lawyers to not allow adaptations of his works.


Without seeking or obtaining permission from Salinger, Defendant Fredrik Colting, using the pen name of John David California, wrote 60 Years Later: Coming Through the Rye (“60 Years Later”) and published his work on May 9, 2009. Colting’s 60 Years Later tells a story of a 76 year old Mr. C (Holden Caulfield) in a world that includes his 90 year old author, a fictionalized Salinger.


Shortly thereafter, Salinger (90 years old at the time) brought suit against Colting and his publishing company for copyright infringement and sought to enjoin Colting from distributing 60 Years Later. Colting contended his book was never intended to be a sequel to Catcher. Salinger submitted on its motion the book’s back cover describing the work as “a marvelous sequel to one of our most beloved classics.” The district court granted Salinger’s motion for preliminary injunction, finding that Salinger would likely prevail on his copyright infringement claim and that Colting’s fair use defense would likely fail.


Historically in the Second Circuit, preliminary injunctions have been issued in copyright cases upon finding of irreparable harm and likelihood of success on the merits. Thus, in the Salinger case, the district court had applied the Second Circuit’s longstanding standard for preliminary injunction for copyright cases. Although it did not find error with district court’s findings, the Second Circuit vacated the lower court’s judgment.


The Second Circuit, however, noted that parts of its own preliminary injunction standard in copyright cases had been abrogated by the Supreme Court’s decision in eBay, Inc. v. MercExchange, L.L.C. (2006). Although eBay addressed a patent case, the Second Circuit expressly held that eBay applied with “equal force” to preliminary injunctions issued in copyright infringement cases. The Second Circuit further noted that the traditional principles of equity applied in eBay are the presumptive standard for injunctions in any context.


In adopting the factors set forth in eBay, the Second Circuit thus set forth a new standard. Accordingly, a court may issue an injunction only if: (1) the plaintiff has demonstrated either likelihood of success on the merits or sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the plaintiff; (2) the plaintiff has demonstrated likelihood of irreparable harm in the absence of an injunction (i.e. remedies at law, such as monetary relief, is inadequate); (3) the court considers the balance of hardship between the plaintiff and defendant and the balance tips in plaintiff’s favor; and (4) public interest would not be disserved by the issuance of a preliminary injunction.