Does A Kid In Your Life Want A “KinderGuide” For Jack Kerouac’s On The Road? Too Bad.

Back in January, a group of literary estates (Truman Capote, Ernest Hemingway, Jack Kerouac, and Arthur C. Clarke) and publishers (Penguin Random House and Simon & Schuster) filed a lawsuit against Moppet Books over a series of “study guides” of mid-20th Century classics for young children. Moppet Books did not have a license to create “guides” of these copyrighted, classic works.

Around the time the complaint was filed, in What Every Kindergartener Needs: A Study Guide for Jack Kerouac’s On The Road?, I wrote:

Without examining the allegedly infringing work against the original novel, I can’t say whether I think these KinderGuides violate copyright law. My gut sense is that it could be copyright infringement if the KinderGuides add little new content to the original works (and thus aren’t sufficiently “transformative”) and use a substantial portion of the original works. We’ll see what happens with the case.

So, here’s the update:

On July 28, 2017, the United States District Court for the Southern District of New York granted summary judgment on the issue of liability to the literary estates and the publishers (meaning that the Court found Moppet Books responsible for copyright infringement without a trial).

On August 15, 2017, the Court permanently stopped Moppet Books from reproducing, distributing, advertising, or transmitting the infringing works in the United States, and then ordered Moppet to destroy all remaining copies of the works. There’s a trial scheduled for October 2, 2017 to resolve the issue of “willfulness” for the purpose of assessing damages.

On September 7, 2017, Judge Jed S. Rakoff issued an opinion explaining these rulings. (available here as a PDF).  The Court said:

  • “By any reasonable comparison, defendants’ Guides copy substantial aspects of the themes, characters, plots, sequencing, pace, and settings of plaintiffs’ Novels. Indeed, that is their stated purpose.”
  • “Here, though defendants’ Guides add additional material at the end, specifically a few brief pages of ‘analysis,’ ‘Quiz questions,’ and information about the author, they are primarily dedicated to retelling plaintiffs’ stories.”
  • “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 work into a protectable publication.”

I’m not surprised by the Court’s rulings or its opinion, despite my sympathy for creators of derivative works of old books that should be in the public domain by now (but aren’t).* I doubt many six-year-olds are particularly interested in a “study guide” of On The Road or The Old Man and the Sea, but it’s kind of sad to think no one will ever have one unless the authors’ distant heirs or the publishing corporations allow it.

*See John Steinbeck & The Cost of Centurial Copyright Protection.

 

John Steinbeck & the Cost of Centurial Copyright Protection

John Steinbeck passed away in 1968, leaving behind a litigious set of heirs who have fought over the right to control his literary work for decades. The most recent iteration of this legal battle, this time between Steinbeck’s daughter-in-law and Steinbeck’s stepdaughter, ended with a jury award of $13.15 million to the stepdaughter.

Here’s the backstory:

  • Through his will, Steinbeck left ownership of the copyrights he renewed in his lifetime to his wife and a $50,000 trust to each of his two sons (from a previous marriage).
  • By law, Steinbeck’s wife as well as his sons were entitled to royalty payments for the works renewed after his death (the law required publication/registration and permitted renewal back then; it’s different now).
  • A 1983 settlement agreement increased the sons’ share of the royalty payments in exchange for giving Steinbeck’s wife control over the exploitation of the copyright (which means the right to license the work to third parties, turning it into royalty-generating movies, spin-offs, etc).
  • Steinbeck’s wife died in 2003, leaving ownership/control of the copyrights to her heirs, including Steinbeck’s step-daughter.

In the most recent litigation, the step-daughter alleged that the son and daughter-in-law thwarted attempts to turn Steinbeck’s works into royalty-generating projects, including new movies (projects that purportedly interested Steven Spielberg and Jennifer Lawrence).

The jury sided with the step-daughter, and the daughter-in-law has stated she will appeal. After that, let’s hope the battle over the copyrights to Steinbeck’s work will finally come to an end. Unfortunately, it’s possible that new legal issues will arise among the heirs until John Steinbeck’s work falls into the public domain, a date that the law has pushed back numerous times since Steinbeck’s death.

Based on the law at the time Steinbeck wrote his novels, when authors were entitled to two consecutive 28-year-terms of copyright protection (56 years total), his books would be in the public domain by now. However, the 1976 amendments to the Copyright Act changed the copyright period for Steinbeck’s novels to 75 years. Then, in 1998, for works still within the 75-year-period, amendments to the law extended copyright protection by another twenty years. The extension was challenged as unconstitutional but, in 2003, the Supreme Court upheld it 7-2 in Eldred v. Ashcroft. The result is 95 years–nearly a century–of copyright protection.

Think of all the judicial resources our courts would’ve saved had Steinbeck’s works entered the public domain after 56 years instead of 95? Think of all the derivative works–the retellings, the new movies–we could’ve enjoyed by now?

Oppressively long copyright protection does nothing more than stifle creative derivative works and enrich heirs who often have merely a tangential relationship to the person who created the work. As Justice Breyer wrote in his dissent in Eldred:

[A]ny remaining monetary incentive is diminished dramatically by the fact that the relevant royalties will not arrive until 75 years or more into the future, when, not the author, but distant heirs, or shareholders in a successor corporation, will receive them. … What potential Shakespeare, Wharton, or Hemingway would be moved by such a sum? What monetarily motivated Melville would not realize that he could do better for his grandchildren by putting a few dollars into an interest-bearing bank account?

With Steinbeck’s books, we may finally see more derivative projects develop, but only if the creators of those projects are willing and able to pay the price Steinbeck’s wife’s heirs want for it.

“Lost Cause” Children’s Literature: What Can We Do About It?

Author Pat Conroy, who passed away in 2016, wrote in his preface to Margaret Mitchell’s Gone With the Wind that he absorbed “his first lessons in the authority of fiction” from the novel, which his mother read aloud to him when he was only five-years-old. He explained:

When my mother described the reaction of the city to the publication of this book, it was the first time I knew that literature had the power to change the world. It certainly changed my mother and the life she was meant to lead forever.

Fiction is a powerful messenger, but not necessarily an “authority” worth believing. As I wrote in Should We Change How We Talk & Write About the Civil War?:

Full of racial slurs and stereotypes, [Gone With the Wind] perpetuates myths about the South. In Margaret Mitchell’s fictional version of her homeland, the planters were charming aristocrats, the slaves were stupid and submissive laborers, and the ruthless “Yankee invaders” ruined everything.

[…]

Gone with the Wind espouses romantic notions of the Old South that hide the brutal truth about slavery and those who wanted to maintain it.

Nevertheless, I enjoyed reading it. So did my husband. We understood its context, and we saw it as fiction about the “lost cause” of the Confederacy, not history. Knowing my children did not yet have the background to understand it, I told my twins not to read Gone With the Wind until they’re older and then I swiftly buried it on my e-reader. They share an account with me and have a tendency to read anything they have access to, including the “boring” U. S. Supreme Court cases I send to my e-reader. (See Are You In Need of a Smile?).

Little did I know that they would soon read a children’s book espousing a sanitized version of the same mythology. A few months into second grade, my then-seven-year-olds borrowed Willie McLean and the Civil War Surrender by Candice Ransom from the school library.

Published in 2005 and intended for elementary-age children, this historical fiction focuses on the Confederacy’s surrender at the McLean House in April 1865, told from the perspective of 11-year-old Willie McLean. The story begins with an Author’s Note that says:

In 1861, America was a divided country. White farmers in the South grew cotton and other crops, using the labor of African American slaves. Others in the South also had slaves. Many Northerners felt that slavery was wrong. The two sides could not agree. The Southern states left the United States, and the Civil War began.

[…]

Willie McLean was eleven years old in 1865. The McLeans never wrote down what happened that fateful April day [of the Confederate surrender], but we know that Willie McLean was present. This is his story, as it might have happened.

The only mention in this book of slavery is in that first paragraph, and it’s a pretty bland description of a vicious, race-based system of forced labor. What does it even mean that “Others in the South also had slaves”? What follows in the rest of the story is a sympathetic portrayal of the Confederacy that lionizes Robert E. Lee. The meager Author’s Note does little to counteract Ransom’s portrayal of the Confederate Army as a noble force protecting their way of life from Northern “invaders.”

My children liked the story about Willie and his sister, but found the Civil War backdrop confusing. Thankfully, they brought it to my attention. This wasn’t the first time we’ve talked to our children about controversial historical moments and complicated historical figures–see Arrrr, Matey! Is That George Washington?–but it was one of our earlier conversations with our twins about slavery and the Civil War.

Since then, this subject has come up several times, most recently over the last two weeks as we’ve watched the controversy over monuments that honor the same Confederate myths we see in Gone With the Wind and Willie McLean and the Civil War Surrender. These monuments, the majority of which were erected long after the end of the Civil War, represent a flawed version of history and serve no purpose other than to promote white supremacy and to suggest to racial and ethnic minorities that we are unwelcome.

As an increasing number of these monuments come down, what should happen to children’s books that espouse the same harmful myths? Should they be removed from library shelves, such as the one at my children’s public school?

It’s a challenging issue. Unlike a statue of Robert E. Lee at the center of a public park or in front of a courthouse, a pro-Confederate book’s presence on the shelves among many books in a library isn’t necessarily a celebration of those ideas, and children may have a First Amendment right to access it, as contentious as it may be.

As our Supreme Court said in Board of Education v. Pico, 457 U.S. 853, 863, 872 (1982):

The Court has long recognized that local school boards have broad discretion in the management of school affairs…, [but] local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books and seek by their removal to “prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.”

But Pico is an old case, and merely a plurality decision (which means that a majority of the court–at least five justices–couldn’t agree on it).

In a more recent case, the Court of Appeals for the 11th Circuit, which includes the federal courts of Alabama, Florida, and Georgia, decided that a school district’s decision to remove a purportedly non-fiction book does not violate the First Amendment rights of their students when the removal is due to “factual inaccuracies” in the book. They said:

[T]he First Amendment does not forbid a school board from removing a book because it contains factual inaccuracies, whether they be of commission or omission. There is no constitutional right to have books containing misstatements of objective facts shelved in a school library.

ACLU, Inc. v. Miami-Dade County Sch. Bd., 557 F.3d 1177 (11th Cir. 2009). They even went so far as to suggest that a school district may lawfully remove a book about the antebellum South that “neglect[s] to mention anything about slavery and the millions of human beings who lived and died in bondage.” Id. at 1223-24.

What about a children’s book that mentions something about slavery, but only briefly and blandly? What if this book is purportedly fiction, but supposedly based on historical fact?

I assume that fiction has more leeway to deviate from historical fact than non-fiction does–it is, after all, fiction–but let’s not forget Pat Conroy’s observation about its “authority.” Fiction is powerful, whether it should be or not, and Willie McLean and the Civil War Surrender left my then-seven-year-old children with the impression that the Confederacy was more noble than it really was. A stronger Author’s Note–one that offered genuine background on what the South was fighting for–would have helped contextualize the strictly Confederate viewpoint it otherwise presented.

That said, I’m not inclined to ask a public school library to remove a book like this from its shelves (and risk being sued). My preference is to discuss controversial books with my kids instead, helping them to develop the critical thinking skills they need to see books that romanticize the Confederacy for what they really are.

 

Whales: Reality Versus Fiction

In Following Papa’s Song, by Gianna Marino, a curious whale calf named Little Blue prepares to migrate. “It is time?” Little Blue wonders. “Listen for the other whales,” Papa explains. “When you hear their call, we’ll know it’s time to go.” Later in the story, Little Blue wants to know about Papa’s call, asking, “When I am big, Papa, will I still hear your song?”

Papa replies: “Yes, Little Blue. If you listen closely, you will always hear my song.”

I choked up a little as I read that line to my six-year-old daughter, who is growing up so fast, as children always do, it seems.

Following Papa’s Song is a beautiful and poignant picture book that captures a special relationship between a father and his child. I wish I could leave it at that, but facts have an awful way of infecting my enjoyment of fiction, and as I was reading this book to my daughter, I kept thinking: Shouldn’t Papa really be Mama?

To find out, I read a couple of studies on baleen whales (which include blue whales). I learned that my hunch is probably right, but the answer might not be so simple. It turns out that we don’t know that much about the social dynamics, reproduction, or parenting of blue whales because their “oceanic tendencies and low numbers” make it difficult to study them (Lomac-MacNair & Smultea 2016). What we do know is that:

  • They tend to be solitary creatures, though they do sometimes form small groups;
  • We have only observed males produce songs; and
  • We have only observed females parenting calves.

So, in real life, a blue whale calf would probably have a relationship with their mother, not their father. However, what I’m wondering about now is how researchers identify the sex of the whale they’re observing.

I’m not a marine biologist, so perhaps this is a silly question, but it’s what came to mind as I read a couple of studies on the subject. A large portion of the information we know about whales seems to come from the gruesome whaling industry. I’m not sure what information they gathered, but they may have noted that whales killed with calves were typically female, a conclusion that is consistent with human gender stereotypes. Whatever the reason, modern observational research seems to assume that whenever two blue whales are together, and one is larger than the other, they are a mother-calf pair.

For example, in Reproductive Parameters of Eastern North Pacific Blue Whales Balaeonoptera musculus (linked below), the researchers explained their methodology like this:

Blue whales were individually identified using photos of the flanks and backs of both sides. Females were identified as cows (i.e. lactating) due to the presence of a calf, which in turn was identified by its relatively small size (half the size) and positioning in synchronous swimming pattern while accompanying the female during several consecutive surfacing sequences in the same sighting over approximately an hour.

That sounds reasonable. However, it’s worth noting that researchers in another study I read, one on humpback whales (also baleen whales), were surprised to learn that two of the whales they identified as female because they appeared to be with calves turned out to be genetically male (amusingly, the researchers punctuated this finding with an exclamation point!). (Barendse et al. 2013).

So, maybe a blue whale calf could follow their papa’s song? It doesn’t seem likely, but who knows what we’ll learn about this magnificent species in the future.

PS. My kids have been interested in blue whales ever since they saw the preserved blue whale heart in Toronto earlier this summer (they went with my sister and my Dad, who is standing with them in the picture). The heart is from a whale carcass that washed ashore in Newfoundland in 2014. To learn more about this exhibit, see Blue Whale (Royal Ontario Museum)  & The Painstaking Process of Preserving a 400-Pound Blue Whale Heart.

________________

Sources:

Barendse et al (2013) Mother Knows Best: Occurrence and Associations of Resighted Humpback Whales Suggest Maternally Derived Fidelity to a Southern Hemisphere Coastal Feeding Ground, PLOS ONE, available at: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3857176/pdf/pone.0081238.pdf

Lomac-MacNair & Smultea (2016), Blue Whale (Balaenoptera musculus) Behavior and Group Dynamics as Observed from an Aircraft off Southern California,  ANIMAL BEHAVIOR & COGNITION, available at: http://animalbehaviorandcognition.org/uploads/journals/9/01.Feb2016-Lomac&Smultea-final.443.del.pdf

MacDonald et al (2006), Biogeographic Characterisation of Blue Whale Song Worldwide: Using Song to Identify Populations, J. CETACEAN RES. MANAGE. 8(1): 55-65, available at: http://cetus.ucsd.edu/Publications/Publications/McDonaldJCRM2006.pdf

Sears et al (2013), Reproductive Parameters of Eastern North Pacific Blue Whales Balaeonoptera musculus, ENDANG SPECIES RES 22:23-31, available at: http://www.int-res.com/articles/esr2014/22/n022p023.pdf

 

 

Charlottesville, Common Ancestry, & Change

As I watched the news coverage of the violent white nationalist rally in Charlottesville, Virginia, I thought about a historical figure I didn’t expect to think about at a time like this: Justice John Marshall Harlan.

Born in Kentucky in 1833, Harlan was a defender of slavery who ultimately changed his views enough to support Reconstruction and write the sole dissent in Plessy v. Ferguson, the 1896 case in which the majority of the United States Supreme Court (everyone except for Harlan) upheld racial segregation laws under the “separate but equal” doctrine.

Harlan’s dissent in Plessy isn’t progressive by today’s standards–for example, he acknowledged the “dominance” of the “white race” and exhibited anti-Chinese sentiment–but it was certainly progressive for that all-white, all-male court at the turn of the last century. He proclaimed, “There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens,” and stated that the majority opinion’s decision to uphold racial segregation would “prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott case,” which, if you remember, is the case from 1857 that denied African Americans citizenship.

Harlan was right about Plessy, as the Supreme Court acknowledged in 1954 in Brown v. Board of Education, which finally declared race-based segregation laws and policies unconstitutional. He was ahead of his time for someone of his privileged background.

Why were Harlan’s views different?

As many scholars have argued, he had a brother who was a slave, a man who became free at the age of 32. His name was Robert Harlan. They had the same father, and they also had what appears to be a close relationship.

According to historian Allyson Hobbs in A Chosen Exile: A History of Racial Passing In American Life, a book I discussed on this blog in A Family Secret:

It is plausible that John Marshall Harlan’s relationship with Robert Harlan shaped the Supreme Court Justice’s enlightened views on race and particularly his dissent in the landmark 1896 Plessy v. Ferguson case.

By the majority’s reasoning in Plessy, with which Harlan disagreed, legislatures could segregate the two Harlan brothers without violating the Constitution. Justice Harlan had a personal basis for seeing the repugnance of segregationist laws, a basis the other Justices either didn’t have or didn’t acknowledge.

I hope people do not need to feel directly affected by racism to care about it, but personal connections seem to make a difference.

While watching those angry white men marching in Charlottesville, I wondered how they would react if they met family members who weren’t white. Or, perhaps more likely, learned through a DNA test that their lineage included African, Asian, Native American, Jewish, Middle Eastern, or Aboriginal ancestry. As genetic studies have shown, many Americans come from racially mixed backgrounds and don’t know it.

For those who somehow pride themselves on their whiteness, would it make a difference to know that they wouldn’t exist but for the ancestors from diverse backgrounds they abhor? Wouldn’t it show them that we are all connected?

Sadly, maybe not. In a Mother Jones profile of right-wing extremist Richard Spencer (the one who was punched on camera on Inauguration Day), he confided that a genetic test revealed he had a small percentage of African heritage. But he dismissed it entirely, saying, “I almost wonder if this is thrown in [by 23andMe] for shits and giggles. Like, ‘We’re all Africans.’”

There may be no hope for white supremacists who are so morally bereft that they proudly display their bigotry. But what about the people who don’t purport to hold these beliefs but who support a government agenda that exacerbates racial inequality (an agenda, coupled with rhetoric, that emboldens white supremacists)? I wonder how they would respond to a “surprise” in their ancestry. Are they capable of changing?

*See also, Uncovering Our Roots: Why Does Family History Matter?

_____

ETA: I hadn’t seen this article–White Nationalists Are Flocking To Genetic Ancestry Tests. Some Don’t Like What They Find by Eric Boodman/STAT— when I was writing this post, but I wish I had. It includes interesting information about how white supremacists respond to DNA test results and how genetic testing companies analyze genetic material.

Five Variations of Jane Austen’s Persuasion

Persuasion, by Jane Austen, revolves around Anne Elliot, the only sensible living member of the Elliots of Kellynch Hall, a family struggling to finance their exorbitant lifestyle in 19th Century England. Anne’s evolution from a persuadable, cautious youth to a mature romantic has inspired scores of modern retellings, five of which I discuss here.

In these reimagined versions of Persuasion, each modern author highlights some aspects of Austen’s original while omitting others. It’s risky to deviate from a beloved classic. What do you keep? Why? What new elements do you introduce? No retelling can ever live up to the original, but, hopefully, it will remind readers of what they love about the original while introducing them to something new and worth reading for its own merits.

These are the Persuasion adaptations I read this month (listed in chronological order by year of publication):

In this modern tale, Anne Elliot is Annie Markham, the daughter of a rude and egotistical businessman who desperately needs a management consultant to stay afloat. That consultant turns out to be Annie’s ex-boyfriend, Jake Mead. Their relationship broke apart so viciously that I almost didn’t want them to get back together, but the pair manages to overcome their differences and live happily ever after.

This modern adaptation of Persuasion stars Anna Elliot, a professor in England who broke Rick Wentworth’s heart when she pursued a degree in Russian at Oxford instead of running off with him. I’ll be honest that I would’ve made the same choice as Anna―call me a “hopeless academic” 😉 ―but I was definitely rooting for Anna and Rick the second time around.

In this post-apocalyptic retelling Persuasion, Anne Elliot is Elliot North, the daughter of a wasteful “Luddite.” The Luddites own the estates on which the “Posts” and the “Reduced” live and work as servants. Elliot falls in love with Kai, a “Post” servant, but their young relationship is doomed. Years later, Kai returns with a new name, Captain Malakai Wentforth, and a new purpose: challenging the social order. This novel borrows heavily from Persuasion, but its setting and additional themes make it a refreshing homage to Austen’s classic novel.

Set in Old Lyme, Connecticut, this modern adaptation of Persuasion emphasizes the romantic elements of Austen’s original―focusing on Hanna Elliot and Derick Wentworth’s second chance at love―while downplaying other themes of Austen’s work, such as the Elliot family’s tenuous financial circumstances. In fact, Hanna isn’t even related to the Sir Walter-based character in this retelling, and she has only one sister, Mary. Overall, it’s a clean romance that lovers of Austen’s original tale are likely to enjoy.

While I was on the subject of Persuasion retellings, I decided to read my own adaptation for the first time since I published it in 2015. Enough time has passed since I wrote it that it actually felt somewhat new (and I no longer felt the urge to edit it!). This story takes place in my hometown just outside of Philadelphia, where the Elkins family lives on a crumbling 34-acre estate (based on a real place). After the matriarch dies under suspicious circumstances, the family turns to the civil court system to seek justice for her death. Their lawyer is Amelia’s ex, a man with no intention of rekindling his romance with the woman who broke his heart, especially if doing so could amount to an ethical violation. After all, lawyers aren’t supposed to date their clients.

~

You’d think reading a series of novels, back-to-back, all based on the same classic source would get “old” eventually, but I guess I haven’t hit my limit of Persuasion spin-offs yet. If you have any recommendations, please let me know. Thanks!

*I wrote this post as part of Austen in August, a reading event hosted by Adam at Roof Beam Reader. Check out the master post for more information.

 

Childfree Aunts, Irish Americans, & The Last Little Blue Envelope

Ginny Blackstone has horrific taste in men.

She’s the 18-year-old main character of the Little Blue Envelope series by Maureen Johnson. I wonder if I would’ve felt differently about her taste if I’d read this set of novels when I was closer to Ginny’s age. My taste in partners isn’t much different today, though. I’m married to the person I started dating a week after I turned 19.

Anyway, apart from an unwelcome cameo in the first book, I enjoyed this mildly entertaining set of novels about a recently deceased aunt who leads her niece on a European adventure through a series of letters. It was a nice summer read that doesn’t fire up too many brain cells (in other words, it’s a vacation). That said, it did get me thinking about two articles I read earlier this year:

  1. Honoring the Childfree Auntie (Ms. blog)

The nicest part about the Little Blue Envelope series is that it features a close relationship between an aunt and her niece, a relationship I rarely come across in fiction, but one that my children are lucky enough to have in real life with my sisters (one who has a child of her own and one who doesn’t). Research shows that my children are among many who benefit from these types of relationships:

A survey of 1,000 non-mothers inspired by Savvy Auntie Melanie Notkin found that children play an active role in the lives of 80 percent of women who don’t have children of their own. Another study found that it’s common for aunts to spend money on the children in their lives and assist kids’ parents financially.

For more information, see the link in the heading. These women certainly deserve our gratitude. [Thanks, sisters! Love you.]

  1. The Fading of the Green: Fewer Americans Identify as Irish (Pew Research Center)

In the second book in the series, The Last Little Blue Envelope, one of Ginny’s poor romantic options cannot believe she doesn’t know what a bodhrán is, insisting, “Come on. You knew that. You’re Irish. All Americans are Irish.”

Obviously, all Americans are not of Irish descent, and I’m sure this character knows that. He’s just being annoying, as is his way. However, his statement reminded me of a Pew study that shows that the percentage of Americans who trace their ancestry to Ireland is slowly declining.

I look South Asian, thanks to my Sri Lankan mom, but I have Irish ancestry on my Dad’s side. That’s how my daughters have red hair, just like Anusha, the star of our Anne of Green Gables-inspired novel, Anusha of Prospect Corner.