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Transformative or Derivative? KinderGuides Case Draws a Clear Line

Transformative or Derivative? KinderGuides Case Draws a Clear Line by Terrica Carrington

September 14, 2017

Early this year, Penguin Random House filed a lawsuit against the publishers of KinderGuides—a series of children’s books presenting “a condensed, simplified version” of classic American novels including Breakfast at Tiffany’s, The Old Man and the Sea, On the Road, and 2001: A Space Odyssey. The estates of Ernest Hemingway, Jack Kerouac, Truman Capote, and other renowned authors and publishers were also plaintiffs in the suit.

In an opinion published last week, which stands to be a significant victory for authors, publishers and the copyright community as a whole, Judge Rakoff of the U.S. District Court for the Southern District of New York ruled in favor of the plaintiffs, holding that Moppet Books, the publisher of the KinderGuides series, “infringe[d] upon plaintiffs’ exclusive right to reproduce their novels … and [their] exclusive right to exploit the market for derivative works based on their novels.”

In the opinion, Judge Rakoff upholds the limitations of fair use by clearly articulating the distinction between a “transformation” and a derivative work. In response to the defendants’ assertion that the KinderGuides constitute a transformative fair use, Judge Rakoff explains “the question is whether the work produces new insights and understandings. Here, the defendants’ expurgated Guides are a vehicle for conveying to children the Novels’ original stories and insight” (emphasis added). “It is not enough,” he adds, “for part of a work to have a transformative purpose. Courts must also consider whether the work [transforms]… ‘to an insignificant or a substantial extent.’”

In addition to condensing the plot, the books in the KinderGuides series also include “[a] few pages of analysis, quiz questions, and background information at the back of each guide,” which Judge Rakoff acknowledged as an obvious attempt to escape liability under the guise of fair use. “Here, defendants’ story summaries do not recount plaintiffs’ novels in the service of literary analysis, they provide literary analysis in the service of trying to make the Guides qualify for the fair use exception,” he says, but “fair use… is not a jacket to be worn over an otherwise infringing outfit.” The fact that these authors have chosen to develop their stories into novels with adult themes and content does not give others free reign to rewrite their original stories as children’s books

Notably, Fredrik Colting, one of the partners behind Moppet Books and a defendant in this suit, was sued in 2009 by J.D. Salinger after writing and attempting to publish a sequel to Salinger’s The Catcher in the Rye that Colting claimed was a transformation of the original work.

In recent years, several courts have egregiously misapplied the fair use doctrine, expanding its scope and blurring the distinction between a transformative use and a derivative work, to the detriment of creators. Everyday there seems to be another person or company claiming to have “transformed” a creative work, when in reality all they’ve really done is repackaged it in an attempt to exploit an untapped market. But as Judge Rakoff stated in the opinion, “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.”

We commend Judge Rakoff’s handle of the issues in this case, and his thoughtful articulation of a clear and reasonable line between fair use and the exclusive rights granted to copyright owners under the Copyright Act. Hopefully, other judges will follow his lead when confronted with defendants seeking to pass off their acts of infringement as transformative uses.