US Copyright Ruling Opinion: The Moppet Books’ KinderGuides Case

In News by Porter Anderson

Writing that ‘Fair use…is not a jacket to be worn over an otherwise infringing outfit,’ the judge in the US KinderGuides copyright case lays out his rationale for his ruling.

Here are six relatively contemporary titles in the Moppet Books KinderGuides series. The Hemingway, Capote, Kerouac, and Clarke titles were represented in the lawsuit this year.

By Porter Anderson, Editor-in-Chief | @Porter_Anderson

A Copyright Test Decision
Last month, Publishing Perspectives covered a copyright case in the United States in which the court has said that Moppet Books’ KinderGuides treatments of Truman Capote’s Breakfast at Tiffany’s, Jack Kerouac’s On the Road, Arthur C. Clarke’s 2001: A Space Odyssey, and Ernest Hemingway’s The Old Man and the Sea infringe the copyrights in the original works.

“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.”US District Judge Jed Rakoff

At that time (August 4), US District Judge Jed Rakoff had not yet issued a detailed statement of his opinion in the case.

Now, Rakoff has issued his opinion. Penguin Random House and Simon & Schuster—which worked together on the case—have issued this joint statement:

“Judge Rakoff’s opinion in the matter of Penguin Random House,  Simon & Schuster et al v. Colting is a clear and definitive victory not only for the plaintiffs in this case, but for copyright holders everywhere.

“On the key issues issues of copying, infringement, and fair use, this opinion unambiguously supports the plaintiff’s claim that the KinderGuides were clearly derivative and plainly infringing.  We are delighted with this result, which sets a standard for strong copyright protection for years to come.”

One of Rakoff’s most eloquent lines in his opinion: “Fair use…is not a jacket to be worn over an otherwise infringing outfit.”

The publishers, speaking to the media on the matter through Simon & Schuster’s offices, have listed excerpts from the full opinion (via Publishers Lunch) as being particularly relevant to their interests, in which they had argued that these children’s editions of books currently under copyright were illegally produced without the permission of the rights holders.

Some examples of the publisher-plaintiffs’ highlighted passages from Rakoff’s decision:

  • “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” in the production of its children’s edition.
  • Although KinderGuides add a “few brief pages of ‘analysis,’ ‘quiz questions,’ and information about the author, they are primarily dedicated to retelling plaintiffs’ stories…[These additional 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.”
  • Abridgements are not “fair use, even in cases where the shortening involves…‘real, substantial condensation of the materials, and intellectual labor and judgment bestowed thereon…’  [Under] the Copyright Act, abridgements are generally considered to be derivative works, and the right to prepare them is reserved exclusively to the copyright holder.”
  • Defendants “point to the few pages of analysis, quiz questions, and background information at the back of each Guide….Tacking on these few pages does not provide safe harbor for an otherwise infringing work. ….[It] is not enough for a part of a work to have a transformative purpose.”
  • “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.”
  • “Congress did not provide a ‘use it or lose it’ mechanism for copyright protection. Instead, Congress granted a package of rights to copyright holders, including the exclusive right to exploit derivative works, regardless of whether copyright holders ever intend to exploit those rights. 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.”

For more on the case, see Publishing Perspectives’ earlier coverage.

About the Author

Porter Anderson

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Porter Anderson has been named International Trade Press Journalist of the Year in London Book Fair's 2019 International Excellence Awards. He is Editor-in-Chief of Publishing Perspectives. He co-founded The Hot Sheet, a newsletter for trade and indie authors, which now is owned and operated by Jane Friedman. He formerly was Associate Editor for The FutureBook at London's The Bookseller. Anderson also has worked as a senior producer, editor, and anchor with, CNN International, and CNN USA, and as an arts critic (National Critics Institute) with The Village Voice and Dallas Times Herald.