Federal judge Jed Rakoff this week officially closed the book on the KinderGuides copyright infringement case, dismissing it with prejudice after the plaintiffs dropped the final claim of willful infringement.
And while Moppet Books now has 60 days to appeal, company cofounder Fredrik Colting told PW that an appeal was highly unlikely—the startup is instead focusing on its new line of books, and simply doesn’t have funds for an appeal.
A trial had been set for October 2 to determine whether Moppet Books was liable for willful infringement, which could have led to a damage award. But that is now moot, and there will be no trial. The disposition also means that a final injunction, issued in August, is now in in full force, and Moppet Books must destroy all current copies of the infringing works "in its possession or under its control" within 10 days.
The case was filed in January by publishers Penguin Random House and Simon & Schuster, along with the estates of Truman Capote, Jack Kerouac, Arthur C. Clarke, and Ernest Hemingway. The suit alleged that Moppet Books' KinderGuide editions of classic novels were “unauthorized derivatives” cast as “study guides intended for the elementary school set.”
On July 28, Judge Jed Rakoff issued a summary judgment for the plaintiffs, rejecting Moppet Books’ claims that the works, created by Colting and cofounder Melissa Medina for the company's KinderGuides series, were protected by fair use. The ruling came just days after oral arguments, and without an accompanying memorandum by Rakoff explaining his decision, which the judge said would come “in due course.”
On September 7, Rakoff finally issued his legal opinion, needing just 12 pages to dispatch with Moppet Books’ fair use defense.
In his opinion Rakoff found the plaintiffs had a strong claim to control what he held to be derivative works, and he took a cynical view of KinderGuides' efforts to create “learning guides.” Rakoff accused the publisher of not recounting the novels “in the service of literary analysis,” but offering “literary analysis in the service of trying to make the Guides qualify for the fair use exception,” he wrote. “Fair use, however, 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.”
In a joint statement, Penguin Random House and Simon & Schuster said the opinion is "a clear and definitive victory not only for the plaintiffs in this case, but for copyright holders everywhere."
