The Boundaries of Fair Use: The KinderGuides Case

It’s been a few weeks now, but publishers and authors are probably still celebrating their decisive victory in Penguin Random House v. Colting (aka the KinderGuides case). In holding that the KinderGuides books published by defendants Colting and Medina were infringing, the court decision establishes clear and reasonable boundaries between the exclusive rights Congress secured to creators and the ability of others to comment on and build on copyrighted works.

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

The defendants argued that their condensing and simplifying of copyrighted classic American novels was permitted under the copyright law as a transformative use under the first factor of the fair use test. Judge Rakoff of the U.S. District Court for the Southern District of New York ruled in favor of the estates and book publishers, holding that the series of children’s books “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 reaching his decision, Judge Rakoff explained that “tacking on” a few pages of analysis is not enough to establish a transformative purpose. To hold otherwise would allow the transformative use fair use exception to swallow whole a copyright owner’s exclusive right to control the making of derivative works.

In upholding the limitations of fair use by clearly articulating the distinction between a “transformation” and a derivative work, the Judge reasoned “[t]he doctrine of fair use furthers [the goals of copyright] by permitting others to use existing works in ways that their owners would not ordinarily use them,” but “what fair use law does not protect is the right of others to produce works that [creators] might choose to produce themselves.”

Judge Rakoff goes on to explain that “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.”

In a world where it seems like almost every day, there is another person or company claiming to have “transformed” a creative work, when in reality all they’ve done is repackage its content, this decision is incredibly important not only to the publishing community but also to the entire copyright community. For years, the copyright law has been thrown off-balance due to an undue broadening of the fair use exception and the transformative use doctrine. Hopefully, the “KinderGuides” opinion will serve as a guidepost as other judges are confronted with similar cases in the future, so that we can once again achieve balance in our copyright system.

For additional blogs by Keith and the Copyright Alliance, please click here.

Author: Keith Kupferschmid

Before joining the Copyright Alliance, Keith served as the General Counsel and Senior Vice President for Intellectual Property for the Software & Information Industry Association (SIIA). During his 16 years at SIIA, he represented and advised SIIA member software and content companies on intellectual property (IP) policy, legal and enforcement matters. He has testified before Congress and various federal and state government agencies on IP issues and also supervised SIIA’s Anti-Piracy Division, including working with federal and state government officials on civil and criminal piracy cases. Prior to joining SIIA, Keith worked as an IP attorney at the law firm of Finnegan, Henderson, Farabow, Garrett & Dunner, IP attorney-advisor at the U.S. Patent and Trademark Office (PTO), Director of Intellectual Property at the United States Trade Representative, and Policy Planning Advisor at the U.S. Copyright Office.
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