Primitive Artist’s Archive Can’t Block Sale of Children’s Book

BOISE (CN) — A federal judge Monday allowed a children’s book about self-taught primitive artist James Castle to be sold in bookstores, rejecting a copyright complaint from the late artist’s archive.

The James Castle Collection and Archive sued the publisher Scholastic Inc. and author Allen Say last week. It sought a restraining order against sales of “Silent Days, Silent Dreams.” Scholastic already had published the book, but not released it. It was publicly released Tuesday, the day after U.S. District Judge B. Lynn Winmill denied the restraining order.

Billed as a work fiction written by an imaginary nephew of the artist, Say’s book depicts Castle as autistic and dyslexic, neither of which can be verified, the archive said in its complaints.

Born deaf and mute in 1899, Castle taught himself to create art with found objects such as paper and soot mixed with saliva. He lived in Idaho his entire life, and eventually his work was discovered by the wider art world. Collections of his art have been displayed at prestigious institutions, including the Smithsonian American Art Museum and the Whitney Museum.

Say told the court he tried to “mimic” and “emulate” Castle’s untrained style in the book, using techniques such as burnt matchsticks and a bamboo pen on a shopping bag.

The archive claimed almost 30 of Say’s illustrations infringed on Castle’s art and that the book depicts him “in a questionable light based on unverifiable theories about his life and abilities.

“The book portrays James Castle as an unhappy, developmentally disabled child who was abused by his family and locked in an attic,” the complaint states. “It also claims that Castle was bullied in school and punished by his teachers for his artistic efforts. In addition, in his author’s note, Mr. Say describes James Castle as autistic and dyslexic, and it can be inferred from this that Mr. Say’s portrayal of James Castle is intended to reflect this theory.”

But Judge Winmill found Say’s work “transformative,” which defeated the copyright claim.

“The copying was necessary to enhance the biographical narrative, told largely through Say’s own illustrations that were not exact copies, but mimicked Castle’s style,” Winmill wrote in the 8-page ruling and order.

“This process became literally transformative in instances where a Castle rendering was changed by inserting Castle himself or other characters into the drawing.”

Though the case is still in its early stages, Winmill found that Say and Scholastic are likely to prevail on their fair-use defenses.

Castle Archive attorney Juliette White, with Parsons Behle & Latimer in Salt Lake City, said: “While we disagree with the Court’s decision, we respect and trust in the judicial process.  This case involves complicated and important issues and we believe that, in the end, we will prevail.”

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