12 September 2017Copyright

Picture books of famous novels not fair use, holds judge

US District Judge Jed Rakoff has published his opinion on why books which recast famous novels into illustrated books for young children are not fair use.

Rakoff handed down his opinion on Friday, September 8 at the District Court for the Southern District of New York, one month after handing a win to publishers Penguin Random House and Simon & Schuster when he found that the books had infringed copyright.

In January, the publishers and the estates of writers Jack Kerouac, Ernest Hemingway, Truman Capote and Arthur Clarke sued Frederick Colting and Melissa Medina, the founders of Moppet Books.

Moppet Books publishes KinderGuides, a line of picture books which recast famous novels.

In the suit the plaintiffs argued that Colting and Medina infringed the copyright of four acclaimed novels:  “Breakfast at Tiffany’s”, “The Old Man and The Sea”, “On the Road” and  “2001: A Space Odyssey”.

The novels were written by Capote, Hemingway, Kerouac and Clarke, respectively, and the copyright of the novels is owned by the plaintiffs.

Last month, Rakoff held that the picture books infringed copyright, granting summary judgment to the publishers on nine counts of copyright infringement.

The nine counts of copyright infringement consisted of two for each of the four novels and one for the character of Holly Golightly (in “Breakfast at Tiffany’s”).

At the time, Rakoff said that a memorandum explaining the reasons for the ruling would be issued in due course.

In the memorandum, Rakoff explained that there is an established market for children’s books based on adult novels and that it’s not unusual for copyright holders to publish/license publication of such books.

He went on to say that the defendants had not sought permission to prepare children's guides for the novels.

According to Rakoff, the defendants had argued that the books were transformative as they had added a page or two of analysis, two pages of quiz questions, and a few pages of background information.

Rakoff added: “Fair use, however, is not a jacket to be worn over an otherwise infringing outfit. One cannot add a bit of commentary to convert an unauthorised derivative work into a protectable publication.

“But tacking on these few pages does not provide safe harbour for an otherwise infringing work”, concluded Rakoff.

Did you enjoy reading this story?  Sign up to our free daily newsletters and get stories like this sent straight to your inbox

Already registered?

Login to your account

To request a FREE 2-week trial subscription, please signup.
NOTE - this can take up to 48hrs to be approved.

Two Weeks Free Trial

For multi-user price options, or to check if your company has an existing subscription that we can add you to for FREE, please email Adrian Tapping at atapping@newtonmedia.co.uk

More on this story

3 August 2017   Penguin Random House and Simon & Schuster secured a win against two authors late last week, after a US judge ruled that picture books based on famous novels infringe copyright.
23 January 2017   Publishers including Penguin Random House, Simon & Schuster and the estates of US writers Jack Kerouac and Ernest Hemingway have sued a US-based writer for copyright infringement.
26 October 2022   Historical facts and sources not protected by copyright | Dispute centred on fictionalised account of the use of the novel “Dr Zhivago” as propaganda.