“Judge Rakoff’s opinion in the matter of Penguin Random House, Simon & Schuster et al vs. Colting is a clear and definitive victory not only for the plaintiffs in this case, but for copyright holders everywhere.  On the key issues issues of copying, infringement, and fair use, this opinion unambiguously supports the plaintiff’s claim that the KinderGuides were clearly derivative and plainly infringing.  We are delighted with this result, which sets a standard for strong copyright protection for years to come.”

Below for your reporting are some selected highlights from the court’s opinion and order (full decision here ):

• Because the ‘characters and events’ in defendants’ Guides ‘spring from the imagination of ‘ Capote, Hemingway, Kerouac, and Clarke, each Guide ‘plainly copies copyrightable, creative expression.”  (p. 12)

 

• “though defendants’ Guides add … a few brief pages of ‘Analysis,’ ‘Quiz Questions,’ and information about the author, they are primarily dedicated to retelling plaintiffs’ stories…   [These additional materials] do not convert the Guides … into something that no longer ‘represents the original work of authorship.’  …. Thus because defendants never received permission from plaintiffs to produce their Guides, the Guides are unauthorized derivatives as a matter of law.”  (p. 18)

 

• “[A]bridgements [are not] fair use, even in cases where the shortening involves… ‘real, substantial condensation of the materials, and intellectual labor and judgment bestowed thereon…’  [U]nder the Copyright Act abridgements are generally considered to be derivative works, and the right to prepare them is reserved exclusively to the copyright holder.”  (p. 22)

 

• “[D]efendants point to the few pages of analysis, quiz questions, and background information at the back of each Guide….tacking on these few pages does not provide safe harbor for an otherwise infringing work. ….  [I]t is not enough for a part of a work to have a transformative purpose.” (p. 23)

 

• “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 derivative work into a protectable publication.” (p. 24)

 

• “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. Indeed, the fact that any given author has decided not to exploit certain rights does not mean that others gain the right to exploit them.” (p. 29)

 

###

 

Claire Von Schilling

Penguin Random House

cvonschilling@penguinrandomhouse.com

212.782.9876

 

Adam Rothberg

Simon & Schuster

Adam.rothberg@simonandschuster.com

212-698-1132