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Salinger v. Random House, Inc. - 811 F.2d 90 (2d Cir. 1987)


After emphasizing the insulation of unpublished works from fair use under "ordinary circumstances," a court in a copyright case considers in turn each of the four factors identified by Congress as "especially relevant," in determining whether a use is fair.: 1. Purpose of the use. 2. Nature of the copyrighted work. 3. Amount and substantiality of the portion used. 4 Effect on the market for the copyrighted work. The Supreme Court of the United States has called the fourth factor the single most important element of fair use.


The plaintiff J. D. Salinger was a highly regarded American novelist and short-story writer, best known for his novel, The Catcher in the Rye. He had not published since 1965 and had chosen to shun all publicity and inquiry concerning his private life. The defendant Ian Hamilton was a well-respected writer on literary topics. He served as literary critic of The London Sunday Times and has authored a biography of the poet Robert Lowell. In July 1983, Hamilton informed Salinger that he was undertaking a biography of Salinger to be published by Random House and sought the author's cooperation. Salinger refused, informing Hamilton that he preferred not to have his biography written during his lifetime. Hamilton nevertheless proceeded and spent the next three years preparing a biography titled J. D. Salinger: A Writing Life.

Salinger, in his action alleging copyright infringement, appealed the order denying his motion for a preliminary injunction against Hamilton and Random House. Salinger appealed from the district court order that denied his motion for a preliminary injunction. Hamilton and Random House contended that the copyrights were subject to the fair use doctrine, and thus were not infringed. 


Were authori Salinger’s unpublished works and letters protected by copyright, thus denying a would-be biographer  the opportunity to copy the expressive content of the unpublished letters?




The United States Court of Appeals for the Second Circuit found that the purpose of the use was outweighed by the nature of the work so that the unpublished works were entitled to greater protection; the extensive use of quotes and paraphrasing by Hamilton and Random House tracked the original so closely as to constitute infringement, and impairment of the market was likely. Central to this appeal was the application of the defense of "fair use" to unpublished works. Following the Supreme Court's approach in Harper & Row, the Court placed special emphasis on the unpublished nature of Salinger's letters and considered each of the four statutory fair use factors. The Court determined that the application of these four factors pointed in Salinger's favor. The Court held that the copyrighted materials were protected for the term of the copyright and that right prevailed over a claim of fair use under ordinary circumstances. Explaining that rulings on applications for a preliminary injunction are reviewed under an "abuse of discretion" standard, the Court reversed and remanded with directions to issue a preliminary injunction.


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