Court Rules Copyright is Not a “Use It or Lose It” Right

Stephen Carlisle September 20, 2017

On September 7, 2017, the District Court for the Southern District of New York issued a significant ruling on the issue of fair use. In the case of Penguin Random House v. Colting, ¹ the Court ruled that the failure of a copyright owner to enter a segment of the market for an expressive work, here, the children’s market, did not entitle an unlicensed interloper to enter that market under the doctrine of fair use.

Here, the defendants adapted several widely famous novels into a series of “illustrated children’s books,” without (of course) taking the step of requesting a license to do so. The works at issue were “Breakfast at Tiffany’s” by Truman Capote, “The Old Man and the Sea” by Ernest Hemingway, “On the Road” by Jack Kerouac, and “2001: A Space Odyssey” by Arthur C. Clarke.

If the name of the Defendant here rings a bell, as it did with me, it is because this is not the first time he has claimed “fair use” by creating a derivative work by a famous author. Previously, Fredrik Colting wrote an unauthorized “sequel” to J.D. Salinger’s seminal work “The Catcher In The Rye” and claimed that his novel was fair use. ² Both the District Court and the Second Circuit Court of Appeals rejected this argument.

So, Mr. Colting is back at it again, defending his rather obvious infringements with arguments variously characterized by the Court as “absurd” and “an exercise in sophistry.” ³

As a threshold matter, one might wonder of what possible use is an “illustrated children’s book” of very adult themed novels such as “On The Road,” which contain scenes in which the characters get drunk, abuse drugs and party with prostitutes, ⁴ or “Breakfast at Tiffany’s,” in which the main character, Holly Golightly, has no job but makes her living by being an escort to wealthy men who ply her with meals, gifts and money. ⁵ According to author Truman Capote in an interview in Playboy magazine:

“Holly Golightly was not precisely a call girl. She had no job, but accompanied expense-account men to the best restaurants and night clubs, with the understanding that her escort was obligated to give her some sort of gift, perhaps jewelry or a check …if she felt like it, she might take her escort home for the night. So these girls are the authentic American geishas, and they’re much more prevalent now than in 1943 or 1944, which was Holly’s era.” ⁶

Yep, just the sort of story you might want your elementary aged son or daughter to read.

But I digress.

Here, amongst other defenses, the defendants make the preposterous arguments that the indelible character of Holly Golightly is a “stock [character] that does not warrant copyright protection” and that the plot of “2001: A Space Odyssey” is an unprotectable cliché or “simply a ‘man versus technology’ plot, hence the elements which naturally arise from it (“a space station, space shuttle, an intelligent machine, tragedy in space, overcoming technology”) are not protected.” ⁷

As the Court would say in the very next paragraph, this is absurd. ⁸

Anyone who has seen the movie “2001: A Space Odyssey” or read the book (I have done both) would know that “2001” is about the search for extraterrestrial life, not a “man versus technology” story. The nexus of the conflict that arises between the astronauts and the HAL 9000 computer is that HAL knows that the true purpose of the mission is to make contact with the aliens who placed the black monolith on the moon. The astronauts do not know this and HAL regards their plan to shut him down as endangering the mission. This is made plain when David Bowman does deactivate HAL and the recording that was to be played to the astronauts when they reached Jupiter is revealed.

But the main defense here is fair use. Defendants claim they have “transformed” Plaintiffs novels by:

• Substantially abridging and shortening the novels
• Removing adult themes (sounds like VidAngel ⁹ doesn’t it?)
• Adding analysis and two pages of quiz questions ¹⁰

The Court responds:

• Abridgements are generally considered to be derivative works
• “[T]he mere removal of adult themes does not meaningfully ‘recast’ the work anymore than an airline’s editing of R-rated films so that they can be shown to children on a flight absolve the airline from paying a royalty.” ¹¹
• “[T]acking on these few pages [of analysis and quiz questions] does not provide safe harbor for an otherwise infringing work.” ¹² “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.” ¹³

But the real argument is that Plaintiffs cannot be harmed because the works cater to different markets, the adult market as opposed to the children’s market (again, putting aside the value of teaching young children what an “escort” is). Defendants argue:

“To pretend that any consumer would go to a bookstore (electronic or otherwise) seeking one of the great classics of American literature and instead choose to purchase an illustrated children’s book defies belief.” ¹⁴

And further, the Defendants argue that the Plaintiffs have “never created, marketed, or licensed any work that remotely resembles Defendants’ works” ¹⁵ and apparently have no intention to do so. ¹⁶ And in an argument that could have come directly from the keyboard of the Electronic Frontier Foundation, by this deliberate inaction, the Defendants argue that the Plaintiffs

“‘explicitly seek to stifle the creation of’ new works, and their ‘sole interest’ in this case ‘is not to preserve their own works, or their ability to license their works, but instead to prevent the creation of wholly new works that reference their own.’ [citation omitted] Plaintiffs’ motives, they contend, do ‘not satisfy the constitutional imperative that the limited monopoly granted to authors be exercised in such a way as to ‘promote the progress of science and the useful arts.’” ¹⁷

Baloney, says the Court.

“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. ‘It would … not serve the ends of the Copyright Act—i.e., to advance the arts—if artists were denied their monopoly over derivative versions of their creative works merely because they made the artistic decision not to saturate those markets with variations of their original.’” ¹⁸

Precisely.

As a copyright owner, it is my right, not yours, to decide what uses of my work get made and which do not get made. This is a point I’ve made too many times to mention.

And, Mr. Colting, now found to be a copyright infringer twice for creating the same kind of illegal derivative works, might better use whatever meager talents he might possess in creating something new, and not trading upon the talent and reputation of some of the literary world’s greatest authors.