Shooting down KinderGuides creators’ fair-use defenses, U.S. District Judge Jed Rakoff of the Southern District of New York wrote in Friday’s ruling that “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.”
Citing the “clearly infringing nature of defendants’ guides, and the fact that that the guides are unauthorized works that do not primarily critique or parody plaintiffs’ novels,” Judge Rakoff ruled that “no reasonable trier of fact could find for defendants in this case.”
The copyrights at stake in the KinderGuides lawsuit include the classic books “Breakfast at Tiffany’s,” “The Old Man and the Sea,” “On the Road” and “2001: A Space Odyssey.”
In January, the publishers and copyright-holding estates of those books filed a lawsuit against KinderGuides creators, Los Angeles-based couple Frederik Colting and Melissa Medina dba Moppet Books.
The plaintiffs in the case include publishing companies Penguin Random House and Simon & Schuster, along with the estates of authors Ernest Hemingway, Truman Capote, Arthur C. Clarke and Jack Kerouac.
On July 28, just days after oral arguments had concluded, Judge Rakoff granted summary judgment for the plaintiffs on all nine counts of copyright infringement – two for each of the four novels and one for the character of Holly Golightly, the central figure in “Breakfast at Tiffany’s.”
Rakoff rejected Moppet’s claim that the works were protected by fair use, noting that his written opinion would come “in due course.”
On Aug. 14, Rakoff issued a permanent injunction banning distribution of the infringing works.
In the Sept. 8 explanation of his orders, Rakoff said it is “undisputed that there is an established market for children’s books based on adult novels, and that it is not unusual for copyright holders to publish, or license publication of, children’s versions of works originally intended for adults.”
He noted that the writers’ estates and publishers never authorized anyone to publish children’s versions of their respective works.
In a declaration likely to please copyright-holders everywhere, Rakoff wrote, “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.”
According to the ruling, the “undisputed facts easily establish actual copying” on the part of Moppet Books.
Rakoff rejected Moppet’s defense that its KinderGuides are transformative.
“The mere removal of adult themes does not meaningfully recast the work any more than an airline’s editing of R-rated films so that they can be shown to children on a flight absolves the airline from paying a royalty,” the judge wrote.
Rakoff also shot down Moppet’s commentary defense, which argued that the kid-friendly works serve educational purposes, evidenced by pages of analysis, quiz questions and background information at the back of each KinderGuide.
“Tacking on these few pages does not provide safe harbor for an otherwise infringing work,” Rakoff wrote. “The law is clear that, to be considered transformative criticism, the aspects of a work that reproduce another’s protected expression must be in service of commentary on that work.”
Plaintiffs Simon & Schuster and Penguin Random House celebrated the judge’s ruling in a joint statement, declaring that it “sets a standard for strong copyright protection for years to come.”
The publishers added that Rakoff’s decision was “a clear and definitive victory not only for the plaintiffs in this case, but for copyright holders everywhere. On the key issues of copying, infringement, and fair use, this opinion unambiguously supports the plaintiff’s claim that the KinderGuides were clearly derivative and plainly infringing.”
But Colting, one of the creators of KinderGuides, called the entire case “a farce” and said the judge’s opinion was confusing.
“Judge Rakoff claims that our books are too similar to the original works without acknowledging that this is the entire point of a literary guide,” he said in a statement. “How would he apply this logic to, say, a Cliff’s Notes? This is not a copyright case, but a case wherein middle-aged suits have forgotten what it’s like to be 6 years old. In effect, they’ve put an age limit on learning.”
Judge Rakoff was appointed by former President Bill Clinton in 1995. He has ruled against the Department of Defense in a Freedom of Information Act case brought by the Associated Press over detainees’ identities and has rejected settlements between the Securities and Exchange Commission and major banks.
He also declared the federal death penalty unconstitutional in 2002, but his decision was reversed by the Second Circuit on appeal.
Rakoff was named in 2014 by Fortune Magazine as one of the World’s 50 Greatest Leaders.