Salinger Legal Case Surfaces in Memphis Federal Court

By Bill Dries

A Memphis company that last summer published three short stories by J.D. Salinger in the U.S. is suing the J.D. Salinger Literary Trust over its plans to publish the trio as “Three Early Stories” in foreign markets.

The Devault-Graves Agency LLC filed the lawsuit Monday, March 16, in the U.S. District Court for the Western District of Tennessee seeking compensatory and punitive damages against the trust as well as a declaratory judgment that it can move ahead with the international publication of the works by the author of the literary classic “The Catcher In The Rye.”

The three short stories include “The Young Folks,” believed to be the first work by Salinger ever published. It and the 1944 short story “Once A Week Won’t Kill You” were both published by Short magazine.

The third work, “Go See Eddie,” was written a few months after “The Young Folks” and submitted to but not published by Short. It was published instead in the University of Kansas City Review.

The Devault-Graves Agency specializes in republishing works that are in the public domain.

The lawsuit claims copyright protection for each of the three short stories lapsed long ago, wasn’t renewed by Salinger or the trust and that the Memphis company has a copyright for the works pending with the U.S. Copyright Office.

The Devault-Graves Agency LLC, a local publishing company, has filed a lawsuit in Memphis federal court against the J.D. Salinger Literary Trust over its plan to publish three of Salinger’s early short stories in foreign markets.

(Daily News File/Andrew J. Breig)

The lawsuit also claims that the Salinger Literary Trust does not own and has never owned the copyrights to the stories.

Salinger did assign the copyrights he owned to the trust in 2008. But the lawsuit includes a record from the U.S. Copyright Office showing the assignment does not include the trio of short stories.

Last summer, the Memphis business published “J.D. Salinger: Three Early Stories.” Devault-Graves bills the book as the first by Salinger in 20 years and the famous author’s debut in e-books and audio books.

A week after “Three Early Stories” went on sale as an e-book through Amazon.com, the Salinger Trust filed a complaint with Amazon, but according to the lawsuit withdrew its objection “conceding that the trust did not own the copyrights to the underlying stories and that they did not have any legal basis to block the publication and sale of “Three Early Stories” within the United States,” reads the lawsuit filed by attorney Taylor A. Cates of Memphis law firm Burch, Porter & Johnson PLLC.

Devault-Graves followed with a paperback version and began arranging for international publication which included signing contracts with publishers and agents.

The publishers and agents outside the U.S. soon began getting cease and desist letters from attorneys for the Salinger Trust threatening legal action. The trust also claims the works are copyrighted under the laws of those countries.

But Devault-Graves is seeking a federal court declaratory judgment that it “is legally entitled to exploit its copyright for ‘Three Early Stories’ in all countries that have signed the Berne Convention and follow the rule of the shorter term.”

The Berne Convention is an international copyright agreement. And by those terms, Devault-Graves claims the stories also are in the public domain.

Attorneys for the Salinger Trust, however, claim the foreign publication of the short stories violates the Berne Convention. Some of the correspondence from them leading up to the lawsuit is included in attachments to the lawsuit.

Cynthia S. Arato, an attorney in New York City for the trust, wrote William S. Parks of Wyatt, Tarrant & Combs LLP, the Memphis attorney for Devault-Graves, in December saying the Memphis company misunderstood its earlier agreement on the domestic publication.

In a footnote she added “As I have explained, we do not seek to halt any U.S. exploitation. However a number of the identified USA sites, while perhaps selling primarily within the U.S., appear to fulfill orders from abroad as well.”

And Arato was concerned the Memphis company was going beyond that and talking with foreign publishers after initially backing off those efforts to have talks with the trust about the move to overseas markets.

“We had hoped for a good faith discussion and resolution of all concerns, and still do, but if Devault wishes to have no further discussion that is its choice,” Arato wrote. “The trust, however, will take the necessary steps to protect its rights around the world.”