Does copyright law’s fair use exception permit a company to publish illustrated children’s versions of classic novels? No, according to a federal court in New York. In a recent decision, Judge Rakoff of the Southern District of New York has ruled that Moppet Books’ “KinderGuides” versions of adult classics, including The Old Man and the Sea, On the Road, Breakfast at Tiffany’s, and 2001: A Space Odyssey, are not fair uses of those works. The decision is a welcome rightsholder-friendly application of the fair use doctrine, which in recent years has been expanded by courts far beyond its traditional application to quotation, short excerpts, and the like.
This case—Penguin Random House, Simon & Schuster et al. v. Frederik Colting and Melissa Medina—was filed in January by Penguin Random House, Simon & Schuster, and representatives of the Capote, Hemingway, Kerouac, and Clarke estates. The claim alleged copyright infringement against Moppet Books, whose unauthorized KinderGuides contain condensed, simplified, and illustrated versions of the plots of famous novels, and include supplemental pages in the back of each book containing analysis, quiz questions, and background information.
The Moppet defendants conceded that their books are based on the novels at issue, and also admitted that they read plaintiffs’ novels in preparing their books. In presenting the case that their uses were fair, they maintained that the KinderGuides were transformative enough in nature to constitute fair use because they were shorter than the originals, intended for a younger audience, and contained a few pages of supplemental information in the books’ back matter.
The court disagreed. “Because the ‘characters and events’ in defendants’ KinderGuides ‘spring from the imagination of’ Capote, Hemingway, Kerouac, and Clarke, each KinderGuide ‘plainly copies copyrightable, creative expression,’” wrote Judge Rakoff. Moreover, he added, although KinderGuides added supplementary material consisting of “a few brief pages of ‘analysis,’ ‘quiz questions,’ and information about the author, they are primarily dedicated to retelling plaintiffs’ stories…[The supplementary materials] do not convert the KinderGuides … into something that no longer ‘represents the original work of authorship.’…. Thus because defendants never received permission from plaintiffs to produce their Guides, the Guides are unauthorized derivatives as a matter of law.”
The opinion itself is notable for the clarity with which Judge Rakoff delineates the difference between a “transformative” fair use and an infringing derivative work when it comes to summaries of plot:
[I]f a defendant’s work describes the plot of a copyrighted work “briefly” in order
to add significant comment about the authors’ plotting technique, then it may be protected by fair use. But if a defendant copies more than is necessary to facilitate “comment or criticism,” then it will not be protected.
The publishing industry welcomed the decision. “It is terrific to see this important court uphold with such clarity the criticality of exclusive rights and licensing for publishers and authors,” said Maria A. Pallante, President and CEO of the Association of American Publishers, a trade group representing the publisher plaintiffs.
One interesting fact is that one of the defendants, Frederik Colting, was also a defendant in the 2010 fair use case, Salinger v. Colting, which dealt with Colting’s 60 Years Later: Coming Through the Rye, an unauthorized “sequel” of sorts to Catcher in the Rye. He also lost that case.