** LEGAL UPDATE **
Publishers who hold exclusive licenses to famous works of literature won a copyright lawsuit against authors who adapted those works as books aimed specifically at children. In Penguin Random House LLC et al v. Frederick Colting et al., (S.D.N.Y. 2017), the creators of the so-called "KinderGuides" series were found to have infringed on the copyright licenses held by major publishers. The case serves as a reminder of the limits of fair use as a defense to copyright infringement.
Major publishers Penguin Random House and Simon & Schuster, along with other plaintiffs, hold exclusive copyright licenses over certain works of major authors such as Ernest Hemingway, Jack Kerouac, and Truman Capote. These works include bestsellers like On The Road, The Man and The Sea, and 2001: A Space Odyssey.
Fredrik Colting and Melissa Medina formed a company called Moppet Books, which published so-called "KinderGuides" to the above-mentioned novels. These "guides" were simplified versions of the narratives, using the same characters and plot lines, intended to "introduce" the works to children. They included illustrations and explanatory text.
The covers of the books included the titles of the original works of literature, along with the original authors, and in smaller text, a logo for "KinderGuides" and an explanation that the books were intended as an introduction for children. The covers also included the name of the illustrator. Four such books were published in 2016, and Moppet Books intended to create a 50-book series of such titles.
Colting, Medina, and Moppet never sought permission from the copyright holders to use the copyrighted works. Moreover, the publishers never sought to have those works turned into children's books, and contend that they would have rejected any requests to make such works.
The publishers and copyright holders (the estates of the authors) sued in the U.S. District Court for the Southern District of New York, based in Manhattan.
This case raises a number of important issues of copyright law. Under the Copyright Act, copyright owners (or their exclusive licensees like these publishers) have certain exclusive rights. These include obvious rights, like the right to make reproductions of the copyrighted work, the right to perform the copyrighted work, and the right to distribute the copyrighted work.
The Copyright Act also bestows some less obvious rights, such as the right to make derivative works (or adaptations) of the copyrighted work. A derivative work is usually a work that is heavily based on the original, for example a movie using identical characters or storylines, or a Russian translation of an English novel. In both of these examples, only the copyright holder has the right to create such works.
Here, the plaintiffs argued that Colting, Medina, and Moppet had infringed on their exclusive rights under the Copyright Act. The books (so-called "guides") were nothing more than derivative works based upon the same characters and storylines as the protected original works.
The defendants readily admitted that they copied key elements of the books, but argue that they should not be found liable for infringement. They countered that their KinderGuides were protected by the doctrine of fair use. Under fair use, copyrighted works can be used without permission under certain circumstances, such as for criticism, commentary, scholarship, or parody. The defendants further argued that the works were transformative; a doctrine under copyright law that would remove the "transformed" work from protection because it is sufficiently different from the original.
On both counts, Judge Jed Rakoff disagreed with the defendants and granted judgment on liability to the plaintiff copyright holders. He held that the KinderGuides "are unauthorized derivative works that do not primarily critique or parody Plaintiffs' novels, but rather reproduce [them]." Because the KinderGuides were found to be effectively derivative works under the Copyright Act, the defendants' use of them was infringing.
Judge Rakoff's decision reminds would-be infringers that fair use will not protect their conduct in every instance. The Copyright Act gives copyright holders the exclusive right to make derivative works; including, here, adaptations of adult books aimed at children. Regardless of how 'creative' that content might be, the court still found it to be an infringement of the publishers' rights.
Effective Date: September 8, 2017