A reader points out that Deborah Batts, the Judge who just blocked publication of a Catcher in the Rye sequel, is also the Judge in the Richard Prince infringement lawsuit. So is there anything in the Catcher opinion that gives us any insight into how Judge Batts is likely to rule in the Prince case?
The opinion walks through the four-factor fair-use analysis pretty methodically, relying fairly heavily on quotes from other fair use cases. On transformativeness (part of the analysis under "purpose and character of use"), it notes that "60 Years borrows quite extensively from Catcher ... such that ... the ratio of the borrowed to the novel elements is quite high, and its transformative character is diminished" (p. 22). As a result, "the determination of whether it constitutes fair use will depend heavily on the remaining factors" (pp. 22-23). Also, because 60 Years "is to be sold for profit, ... this [separate] prong of the first factor weighs against a finding of fair use" (p. 23).
On the second factor -- "the nature of the copyrighted work" -- "there is no question that [Catcher in the Rye] is a 'creative expression for public dissemination that falls within the core of the copyright's protective purposes.' Consequently, this factor weighs against a finding of fair use" (p. 24).
Regarding the third factor -- "the amount and substantiality of the portion used in relation to the copyrighted work as a whole" -- "the ratio of the 'borrowed to the new elements' in 60 Years is unnecessarily high" (pp. 30-31). "Because Defendants have taken much more from Salinger's copyrighted works than is necessary to serve their alleged critical purpose, the third factor weighs heavily against a finding of fair use" (p. 32).
Finally, the fourth factor -- "the effect of the use upon the potential market for or value of the copyrighted work" -- "requires the courts to 'consider not only the extent of market harm caused by the particular actions of the alleged infringer, but also whether unrestricted and widespread conduct of the sort engaged in by the defendant ... would result in a substantially adverse impact on the potential market for the original'" (pp. 32-33, emphasis added). In response to the defendants' claim that there was "no evidence that 60 Years will undermine the market for Catcher or any authorized sequel," the opinion says that "it is quite likely that the publishing of 60 Years and similar widespread works could substantially harm the market for a Catcher sequel or other derivative works" (p. 34, emphasis added again). As a result, "the fourth factor weighs, albeit only slightly, against fair use" (p. 35).
Adding it all up, the Court finds that the "limited transformative character" of the work is not enough to overcome "the obvious commercial nature of the work, the likely injury to the potential market for derivative works ..., and especially the substantial and pervasive extent to which 60 Years borrows from Catcher" (p. 36).
All in all, one senses a very cautious approach, and not someone who is likely to embrace more ambitious theories of appropriation art not securely grounded in existing caselaw. But, barring settlement, we'll soon see.