September 12, 2017
AAP Welcomes Judge Rakoff’s Opinion in “KinderGuides Case”
Penguin Random House LLC, Simon & Schuster, Inc. et al. vs. Frederik Colting and Melissa Medina
Washington, DC; September 12, 2017 – The Association of American Publishers (AAP) welcomes Judge Jed Rakoff’s opinion on Penguin Random House LLC, Simon & Schuster, Inc. et al vs. Frederik Colting and Melissa Medina as a clear articulation of the boundaries to fair use. The opinion will help to ensure that the rights of copyright owners are weighed appropriately in fair use claims, consistent with the Constitutional purpose of copyright law.
In his opinion, Judge Rakoff finds that because the KinderGuides published by Colting and Medina essentially created children’s versions of the plaintiffs’ classic works of adult fiction by substantially copying the characters, names, idiosyncrasies, plots, backdrop and themes, they are derivative works. The fact that the KinderGuides included a few pages of supplemental material did not transform the infringement into a fair use: “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.” (Rakoff opinion, p. 24)
Furthermore, Judge Rakoff affirmed that Congress granted copyright holders the exclusive right to produce, license and exploit the market for their derivative works whether or not they intend to do so. According to his opinion, “Congress did not provide a use it or lose it mechanism for copyright protection…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.” (Rakoff opinion, p. 29)
“It is terrific to see this important court uphold with such clarity the criticality of exclusive rights and licensing for publishers and authors,” said Maria A. Pallante, President and CEO of AAP,” we applaud the opinion.”
About AAP
The Association of American Publishers (AAP) represents more than 300 book and journal publishers in the United States on matters of law and policy. Find us online at publishers.org or on twitter at @AmericanPublish.