[Note that Colting does not characterize his work as a sequel to Salinger's work. Rather Colting argues that his work is not a sequel but a transformative work of literary criticism, thereby subject to the fair use defense.]
The forgoing is by way of background. The oral argument before the Second Circuit was held this week. Judge Guido Calabresi, a long serving member of the Second Circuit, sat on the appellate panel. There has been wide spread reporting of an interesting comment made by Judge Calabresi during oral argument. It is reported that he questioned whether Colting's work is good enough to harm Salinger, describing the Colting work as "a rather dismal piece of work if I may say so."
Judge Calabrisi's comment on the quality of Colting's work produced a chuckle, and raises the question whether a poor copy of a highly regarded literary work can be so poorly written that there is no liability for copying. Can Salinger's pedestal be so high that any minor work, including a dismal work, cannot create copyright harm? On this issue, the caution of Oliver Wendell Holmes on a jurist's artistic talent is worth noting. In Bleistein v. Donaldson Lithographing Co., 188 U.S. 239 (1903), Justice Holmes wrote on the question of whether a common circus advertisement was protectable under copyright as art. Justice Harlan believed that a common advertisment design is not "useful art" (as authorized under Art. I, sect. 8, cl. 8 of the U.S. Const.) and is not copyrightable. Holmes observed:
It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits. At the one extreme some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke. It may be more than doubted, for instance, whether the etchings of Goya or the paintings of Manet would have been sure of protection when seen for the first time. At the other end, copyright would be denied to pictures which appealed to a public less educated than the judge.Certainly the copyright issue relating to Colting's work does not turn on Calabresi's literary likings, whether dismal or robust. An artistic copy, notwithstanding the literary merit, can still infringe. This issue, as taught by Justice Souter and as learned by 2 Live Crew, is whether Colting took too much of the creative, protectable elements of The Catcher in the Rye and whether the portion used is appropriately transformative. The issue is not whether Colting's work is good enough to be placed next to the pillar of Salinger.