At our law firm, we represent authors, agents and publishers in a variety of copyright matters, including drafting, reviewing and negotiating agreements involving licensing, publishing, representation, marketing, works for hire and more. In addition, we vigorously protect our clients against accusations of copyright infringement or, on the other hand, we assert and enforce the rights of copyright and license holders against infringement by others.

A recent copyright lawsuit in New York federal court dealt extensively with “fair use,” a legal defense against an infringement charge. A use is fair when even though a party has used copyrighted materials without permission, the use was considered legally reasonable.

Federal law on fair use 

The federal Copyright Act explains that a fair use of copyrighted material negates a finding of infringement. The statute provides fair-use examples like use in “criticism, comment, news reporting, teaching … scholarship, or research.” 

In closer cases, the statute requires consideration of four specific factors to analyze fairness: 

  • Purpose and nature of use, including whether it is commercial or educational
  • Nature of copied work
  • Size and “substantiality” of the part of the work used, considering the entirety of the work
  • Impact of use on the “potential market for or value of” the original work 

One of the purposes of allowing reasonable, fair uses without permission is that copyright owners would not normally use their works in these ways. For example, an author would not be likely to write a critique of his or her own work. 

Court found infringement and derivative works 

In 2016, Moppet Books published four books designed to introduce classic novels to child readers. The books are colorfully illustrated, including pictures of the original novelists, and summarize and simplify the original books for child readers. Permission was not sought from copyright holders of the original works. 

In Penguin Random House LLC v. Colting, several publishers, relatives and other parties with copyright interest in any of the four classic novels that formed the basis for the KinderGuides sued the creators and publishers of the guides for copyright infringement. 

The iconic books are: 

  • “The Old Man and the Sea” by Ernest Hemingway

  • “2001: A Space Odyssey” by Arthur C. Clarke

  • “Breakfast at Tiffany’s” by Truman Capote

  • “On the Road” by Jack Kerouak

The court found that the KinderGuides infringed the copyrights of their respective original works and that the guides were unauthorized derivative works.

No fair use of famous novels in KinderGuides

Next, the court turned to whether a fair-use defense was appropriate, describing the issue as “whether illustrated children’s guides to adult novels are the sort of use that Congress reserved to copyright holders or the sort of use, like criticism or parody, which Congress intended to allow others to exploit.”

The court analyzed the fair-use factors and found they favor the copyright holders:

  • The KinderGuides do not substantially transform the nature and purpose of the original works enough to make their use fair. The guides use major parts of the original plots and abridging the original works amounts to creating derivative works, which is the right of the copyright holders. The same analysis applies to removal of adult themes. The few pages of literary analysis in the guides are not sufficient to transform the guides into works of transformative commentary.

  • In the interest of promoting the arts, fictional works are more broadly protected in the fair-use context than are factual or nonfiction works, which favors plaintiffs.

  • The main use of the copyrighted works is to provide stories to retell, not to “serve some transformative purpose — such as to provide commentary or criticism.”

  • The guides have the potential to impact the market of derivative works for children based on the original novels. The copyright holders own the rights to derivative works, and it does not matter if they have not exercised those rights or have no plans to do so.

Because the guides have a “clearly infringing nature” and are “unauthorized derivative works,” the court affirmed the grant of summary judgment to the plaintiffs.