In a brief (and as yet unexplained) ruling, a federal judge in New York has found that upstart Moppet Books infringed copyright by creating unauthorized children's learning guides to a host of classic novels. In his summary judgment issued on July 28, Judge Jed Rakoff rejected Moppet Books’ claims that the works, created by founders Frederik Colting and Melissa Medina for the company's KinderGuides series, were protected by fair use.
The ruling came just days after oral arguments were presented in the case, and without an accompanying memorandum by Rakoff explaining his decision, which the judge said would come “in due course.”
Filed on January 19, the suit was brought by publishers Penguin Random House and Simon & Schuster, with the estates of Truman Capote, Jack Kerouac, Arthur C. Clarke, and Ernest Hemingway. It alleged the KinderGuide editions of classic novels—including Capote’s Breakfast at Tiffany’s, Kerouac’s On the Road, Clarke’s 2001, A Space Odyssey and Hemingway’s The Old Man and the Sea—were “unauthorized derivatives” cast as “study guides intended for the elementary school set.”
In a joint statement, the publishers said they were pleased with the court’s ruling.
“The ruling recognizes the clearly infringing nature of the KinderGuides Books," the statement reads, "and unambiguously supports copyright holders’ ability to exercise control over the publication of their works.” (Although, without an accompanying memorandum from Rakoff at this time it's hard to know just how "unambiguous" the ruling really is).
Moppet co-founder Fredrik Colting told PW that Moppet would appeal.
“We’re obviously disappointed that greed is allowed to trump what we feel is a groundbreaking venture for the benefit of our literary future,” he said, adding that KinderGuides and Moppet Books would “continue with its mission of creating beautiful books that inspire learning.”
Colting also told PW that the books named in the suit had not been for sale for months, after Amazon.com and the Moppet Books web site host were served with takedown notices earlier this year. Those takedown notices, he pointed out, effectively shut down publication even though there was no finding of infringement at the time, and no preliminary injunction issued in the case. KinderGuides editions of public domain works remain available.
At press time, Rakoff had also not yet issued an order for relief, as he waits to see if Moppet will raise an "advice of counsel" defense to the claims of willful infringement. In their initial complaint, the publishers had asked the court to permanently enjoin Moppet Books from selling the books in question, as well as to order the recall and destruction of all copies in the U.S. market. The suit also asked for damages and attorney fees.
This is not Colting's first copyright case in the New York district court—a point that was noted in the publishers' initial complaint.
In 2009, Colting was sued by the J.D. Salinger estate for his book 60 Years Later: Coming Through the Rye, which was described as an unauthorized sequel to The Catcher in the Rye.
“He was enjoined by this Court from publishing that book and his cry of fair use—which he will no doubt raise yet again—was soundly rejected," the publishers initial complaint notes. "Now operating under the name Moppet Books, Colting once again proceeds to brazenly infringe the rights of different authors.”
In July of 2009, Judge Deborah Batts did issue a preliminary injunction against Colting, blocking 60 Years Later from publication in the U.S. However, that ruling was vacated on appeal, and the parties settled in 2011.
