In 2009, the pseudonymous 'John David California" announced plans for U.S. publication of 6o Years Later: Coming Through the Rye, a "sequel" to JD. Salinger's canonical novel The Catcher in the Rye. Salinger reacted swiftly, bringing a copyright infingement suit to enjoin publication of the new work. The district court granted the injunction, effectively banning U.S. distribution of the sequel and unintentionally illustrating modern copyright law's troubling divergence from the purpose of the constitutional grant of copyright authority to Congress.
Economic analysis demonstrates the tension caused by the repeated, incremental expansion of copyright protections-at some point, the Copyright Act will fail to incentivize the net dissemination of new works. A check on congressional authority is needed. While a multitude of scholars have advocated for the First Amendment to serve as such, this Note proposes that the "promotion-of-progress" requirement of Article I, Section 8 of the U.S. Constitution provides a superior alternative to direct First Amendment scrutiny. Thus, where the Copyright Act fails to encourage artistic output -- and, as applied to situations like Salinger v. Colting, it almost certainly does -- the Act is unconstitutional.
John M. Newman, Holden Caulfield Grows Up: Salinger v. Colting, the Promotion-of-Progress Requirement, and Market Failure in a Derivative-Works Regime, 96 Iowa L. Rev. 737 (2011).