Fredrik Colting Strikes Again

Fredrik Colting Strikes Again

Fredrick Colting is a Swedish author best known for writing the unauthorized sequel to J.D. Salinger’s classic novel, Catcher in the Rye.^[1] 60 Years Later: Coming Through the Rye was never published due to a successful copyright infringement suit brought by Salinger’s estate in 2012.^[2] Mr. Colting is making headlines again this past month due to another copyright infringement suit brought against him. This new suit pits Mr. Colting and his writing partner, Melissa Medina, against the Hemingway Family Trust, the Estate of Jack Kerouak, the Truman Capote Literary Trust, and the Arthur C. Clarke Trust, among others, over the pair’s latest project: KinderGuides.^[3]

KinderGuides are illustrated children’s versions of classic novels which aim to “introduce the greatest literary works to children everywhere, and lay the foundation for a lifelong appreciation for our most beloved classics.”^[4] However, while the stated purpose of the guides seems noble, their use of classic, copyrighted literary works has proven problematic.  It seems Mr. Colting and Ms. Medina failed to obtain permission to use the works before producing the guides.  As of the time of publication of this post, Kinderguides versions of Hemingway’s The Old Man and the Sea, Kerouac’s On the Road, Clarke’s 2001: A Space Odyssey, and Capote’s Breakfast at Tiffany’s were available through online retailers.^[5] According to the KinderGuides website, Mr. Colting and Ms. Medina plan to release versions of Paulo Coelho’s The Alchemist, Jane Austen’s Pride and Prejudice, Harper Lee’s To Kill a Mockingbird, and, ironically, J.D. Salinger’s The Catcher in the Rye within the next year.^[6] Of the works to receive the KinderGuide treatment only Pride and Prejudice is part of the public domain.

The complaint, filed in the Southern District of New York on January 19, 2017, alleges Colting and Medina engaged in “willful copyright infringement.”^[7] It states KinderGuides borrowed the plot, sequence of events, characters, settings, pace, time and themes of the original works.^[8] Further, plaintiffs argue that this borrowing is particularly egregious given the original authors’ stated preference that their works not be abridged or illustrated.^[9] The complaint also argues that the use of the original author’s byline on the cover of the KinderGuides is misleading and will likely lead to market confusion.^[10]

Plaintiffs recognize that Mr. Colting and Ms. Medina will raise the defense of fair use.^[11] The fair use defense is established by statute:

 

[T]he fair use of a copyrighted work … for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.^[12]

 

The Supreme Court has ruled that a transformative work “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message…”^[13] Further, “[t]he more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.”^[14]

The KinderGuides creators have argued that the work is transformative and therefore not infringing.^[15] Mr. Colting has tried to analogize KinderGuides to Spark Notes or Cliff Notes study guides, transformative literary works which do not infringe on the copyright of the original authors.^[16] The children’s books do include a study section at the end with key characters, vocabulary, author biography, and comprehension questions.^[17] Further, the guides do not feature any of the text from the original literary work.^[18] The New York Times has recognized “the books almost seem like parodies…”^[19]

The Second Circuit has had the opportunity to develop significant jurisprudence in the area of transformative use.^[20] Most notably in 2013 it ruled in favor of the creator of a transformative visual work in Caiou v. Prince.^[21] In that case, a noted “appropriation artist”, Prince, used unauthorized photos in collages^[22] which were later publically displayed.^[23] Prince, argued that because he had painted over the faces of the subjects of the photos, added a guitar, and changed the medium his use of the photos was transformative and should be afforded the protection of fair use.^[24] The court evaluated, seemingly with equal weight, both the third and fourth factors of the fair use test and ultimately determined the Prince’s collage qualified for fair use protection.^[25] The Seventh Circuit later criticized this approach as inconsistent with the supreme court’s mandate to weigh the transformative nature of the work more heavily.^[26]

It is difficult to compare Caiou’s photographs to the KinderGuides, however it seems likely that the court will look carefully at both the transformative nature of the work as well as its effect on the potential market for the copyrighted works.