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.

 

4 comments

  1. My husband studied radio law in college, and he gets so, so, so mad about intellectual property that doesn’t enter the public domain after X number of years after the death of the creator, Disney being the worst offender to him. Thanks for the update, Amal!

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