NEW YORK — Federal appeals court judges had plenty of questions Thursday about a Swedish author's so-far unsuccessful attempt to publish a book in the United States that was once promoted as a sequel to J.D. Salinger's "The Catcher in the Rye."
The three-judge panel of the 2nd U.S. Circuit Court of Appeals expressed doubts about whether a lower-court judge heard enough evidence before blocking the U.S. publication this summer of "60 Years Later: Coming Through the Rye."
Judge Guido Calabresi was sure of one thing though – his opinion of the novel by Swedish author Fredrik Colting. He gave an instant review of the book that's already published in England, referencing it as "this rather dismal piece of work if I may say so."
The case largely hinges on whether Colting's book transforms Salinger's original creation enough that it qualifies to be published as "fair use" of copyrighted work.
Edward H. Rosenthal, a lawyer for Colting and SCB Distributors Inc., which would distribute the book in the United States, told the judges that Judge Deborah Batts had banned the book even though it was "highly transformative with enormous amounts of commentary and criticism."
Marcia Beth Paul, a lawyer who argued on Salinger's behalf, said publication of the book would violate her client's right not to publish any sequels of the novel, a fixture in classrooms across the world for more than half a century.
Paul was questioned repeatedly by Calabresi and Judge Jose A. Cabranes.
Calabresi asked whether the lower court judge might need to hear more evidence because the case relates to the First Amendment.
Paul said the book copied too much of Salinger's work.
"It is clear on its face that this work is not transformative," she said.
"The Catcher in the Rye," which has sold more than 35 million copies, 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.
Published in 1951, it was written by Salinger, of Cornish, N.H., who did not attend arguments in the case after challenging publication of the new novel.
Colting, who lives near Gothenburg, Sweden, has said in a court document that he did not "slavishly copy" Salinger when he wrote the novel, his first, under the pseudonym J.D. California.
"I am not a pirate," he wrote.