An important and instructive decision was handed down this week by New York District Court in the KinderGuides case. KinderGuides is a series of children’s books that include adaptations of classic works with some commentary about the authors and the stories. Publisher Moppet Books has released illustrated, young-reader versions of works from the public domain like The Odyssey and Jane Eyre. But when they decided to launch a series of modern American classics still under copyright, this prompted litigation by rights holders who had not licensed their works to Moppet for adaptation.
At issue were Hemingway’s The Old Man and the Sea, Truman Capote’s Breakfast at Tiffany’s, Jack Kerouac’s On the Road, and Arthur C. Clarke’s 2001: A Space Odyssey. The suit against Moppet was filed by a group of plaintiffs including Penguin Random House, Simon & Schuster, and the estates or trusts of the four authors. Now, before we ask the very reasonable question as to whether the Capote and Kerouac books in particular belong on a young child’s bookshelf in any form, hold that thought while we address the copyright story because it’s a lulu.
Moppet is the business venture of Frederick Colting and Melissa Medina. In 2009, Colting was successfully sued by the estate of J.D. Salinger for publishing an unauthorized sequel to The Catcher in the Rye. The New York Times reported in January, “Given the suit field by the Salinger estate, some in publishing were surprised that Mr. Colting would publish children’s versions of copyrighted works.”
What I find particularly striking about Judge Rakoff’s opinion in this case is that we can infer from his wry rejections of the defendants’ logic a narrative in which Moppet hoped to translate personal and generalized criticisms of copyright law into a series of affirmative defenses for having broken the law. Rakoff was unequivocal in his dismissal of all of Moppet’s arguments, using terms like “absurd theory,” “exercise in sophistry,” “no support in applicable law,” and my personal favorite, “Implicit in defendants’ argument, then, is a contention that the Copyright Act itself is unconstitutional.” Suffice to say, Moppet did not have a good day in court. But let’s look at some of the important issues.
In order to infringe the right of reproduction in regard to this kind of adaptation, the plaintiff must show that the new work is “substantially similar” to the original. So, if a short and sanitized story about a girl named Holly Golightly contains essential elements from Truman Capote’s novel, then it will be considered “substantially similar” to the original under the law. Bizarrely, though, Moppet tried to argue that the characters and narratives in all four of the novels were “stock” elements not protected by copyright. For instance, it appears they tried to claim that Holly is just any “small town girl with a tough past.”
This is an inscrutable claim coming from a publisher that aims to produce and sell children’s versions of classic literature. Because if there were truly no “substantial similarity” to the original, as they tried to argue—if the Holly they presented in their version bore no resemblance to Capote’s character living out Capote’s narrative—then, Moppet would probably be guilty of fraud—and possibly infringement of Capote’s right of publicity—because they would be selling their customers a book that has nothing whatsoever to do with Breakfast at Tiffany’s. You can’t have it both ways; either it’s an adaptation or it’s a different story.
From Rakoff’s remarks, it seems the defendants tried to argue that the creative expressions in the novels are “fictional facts,” which were then “summarized” in the KinderGuide books. This is the part Rakoff called an “exercise in sophistry.” Legitimate summaries, as one might find in a book review, literary criticism, or a Cliff’s Notes type study guide, are patently distinct from adapted retellings of the stories themselves. What KinderGuides produced were illustrated, children’s adaptations of the novels, which makes them “derivative works” under copyright law, rather than “guides” or other forms of comment about the novels.
A rights holder retains the exclusive right to prepare derivative works (§106 (2)), which includes various types of works that are “based on the original works of authorship.” So, products like film adaptations of novels, fictionalizations of non-fiction works, sound recordings, spin-offs, sequels, and translations are all examples of works that only the author has the right to prepare or license others to prepare. And this would naturally include children’s versions of novels that were originally written for adults.
The term “based upon” can be confusing because fair uses and new expressions are “based upon” works all the time. Here, Judge Rakoff makes the distinction by reference to a case in which a Harry Potter Encyclopedia was held not to be a derivative work:
“A work is not derivative, however, simply because it is ‘based upon’ the preexisting works. Only works that are ‘recast, transformed, or adapted’ into another medium, mode, or language while still representing the ‘original work of authorship’ are derivative.
Here, though defendants’ Guides add additional material at the end, specifically a few brief pages of “Analysis,” “Quiz Questions,” and information about the author, they are primarily dedicated to retelling plaintiffs’ stories. Two pages of analysis do not convert the Guides overall – which are largely composed of “Story Summaries” – into something that no longer “represents the original work of authorship.’”
We see this happen with some frequency in the digital universe where repurposing content is relatively cheap and easy. A party wants to capitalize on the brand value of a notable work by making a use that infringes copyright, but they hope that some minimal measure of addition or change to the original work will meet the standards of fair use. In fact, Rakoff’s opinion states that Colting and Medina “‘went to great lengths’ to achieve fair use protection,” implying that they made decisions based on how they believed fair use works (or how an attorney mis-advised them) but with little understanding of the actual doctrine.
Judge Rakoff held that defendants would be unlikely to prevail in weighing all four factors of the fair use test, stating, “Fair use…is not a jacket to be worn over an otherwise infringing outfit. One cannot add a bit of commentary to convert an unauthorized derivative work into a protectable publication.” Even with my limited experience in the world of copyright law, I can imagine that quote will be cited in many fair use cases to come. It is one that should resonate with bloggers, YouTubers, and other digital-media creators who frequently imagine various uses to be fair uses when they are not.
Copyright is Not a Use-It-Or-Lose-It Right
One of the most important lessons in this case is revealed in the consideration of the fourth fair use factor, which weighs the potential market harm to the original works of authorship. While it is reasonable to think that a children’s version of a classic novel should have either no negative impact—or even a potentially positive impact—on sales of the original works, this is not the question on which the matter turns.
The exclusive rights in copyright, including the preparation of derivative works, are a not a use-it-or-lose-it proposition. The author retains the right to change his mind and, for instance, prepare derivative works at any point during the term of copyright protection. That right includes preventing the preparation of derivative works that the author or his assigns believe to be inappropriate uses of the original works.
Based on Judge Rakoff’s opinion, it seems that Colting and Medina were of the opinion that because the rights holders of these novels had not yet prepared children’s versions of these decades-old books, that some sort of limit had been reached, which should allow them to create their KinderGuides versions. This reads as an attempt to argue that the defendant’s opinion that copyright terms are too long is the same thing as an affirmative defense for infringement. “Indeed, the fact that any given author has decided not to exploit certain rights does not mean that others gain the right to exploit them,” stated Rakoff shortly before he opined that the defendant’s argument in this regard is tantamount to calling the copyright act unconstitutional.
Value to the Public
This rather arrogant assumption that the right to exploit a work in a specific way should devolve from the rights holders as a consequence of non-exploitation raises a question of value for me that is separate from—but adjacent to—the copyright issues. As a parent who is reasonably well-versed in the literary arts, I’m skeptical about the value KinderGuides would be providing in this particular case. If Kerouac-Lite existed, I don’t see why I would buy it for my kid.
As described in an older post, I remember being a new parent in the 1990s when the market exploded with billions of dollars worth of products and services designed to mold our children into geniuses. It became necessary to step back from all that frenzy and think about which choices are truly in the interest of the child in contrast to those which more likely appeal to the egos of the parents.
In fact the 2016 New York Times headline announcing Moppet’s foray into American classics virtually echoes this tension between parent ego and child education. Forget ‘Pat the Bunny.’ My Child Is Reading Hemingway, it says. The notably careless mention of Pat the Bunny, which is a pre-reader’s tactile book, brings back memories of getting swept up in the marketing of things my kids don’t actually need. One does not segue from Pat to Papa quite so rapidly. And my instinct is that one shouldn’t.
My personal view in this regard is that children’s versions of works that may be described as foundational building blocks of literature and culture—The Odyssey, the Bible, Shakespeare, Norse Myths, Little Women, etc.—can be tremendously valuable. While the 6-12-year-old is still learning fundamental literacy like spelling and grammar, this is a good time to introduce simplified versions of ancient stories and themes they will later discover resonating throughout their reading experiences. At least that’s the hope.
But publishing children’s versions of novels like On the Road or Breakfast at Tiffany’s in particular smacks of market opportunism with dubious educational value, especially in contrast to the wealth of great literature written purposely for children. It’s not that it wouldn’t be possible to legally write the children’s version of a story about an “American geisha” (as Capote described Holly Golightly), so much as one has to wonder why one would do so. Thankfully, Judge Rakoff offers a sober and informative opinion regarding KinderGuides’ efforts before they get any ideas about the works of Anaïs Nin.
© 2017, David Newhoff. All rights reserved.