Parody and fair use will be the two issues at center stage as Pearson Education's copyright infringement lawsuit over Little, Brown's publication of the surprise bestseller Yiddish with Dick and Jane moves forward. Pearson, publisher of the original Dick and Jane educational series, filed suit in the U.S. district court for the central district of California earlier this month against LB, authors Ellis Weiner and Barbara Davilman and illustrator Gabi Payne, as well as Liz Dubelman, president of VidLit.com, which produced an online audiovisual promotion for the book. The suit seeks to prevent LB from continuing to sell Yiddish.
Pearson is alleging copyright infringement despite the disclaimer on the back of Yiddish that states: "This book is a parody and has not been prepared, approved, or authorized by the creators or producers of the Dick and Jane reading primers for children." The lawsuit also acknowledges discussions between Pearson and LB prior to Yiddish's publication: "While disagreeing with LBC's [Little Brown & Co.'s] assertion that the infringing work was protected under fair use doctrine, the plaintiff [Pearson] determined not to take any further action at that time."
Pearson claims that the release of Yiddish is "depriving [Pearson] of its ability to create its own humorous and non-parody works such as [the film] Fun with Dick and Jane." The first Fun with Dick and Jane movie was released in the mid-1970s and a remake, starring Téa Leoni and Jim Carrey, is set for release this June. Pearson also noted that it sold four million copies of books in the Dick and Jane series in 2004 and has licensed the name for use on numerous products.
Courts have had a mixed history in determining what amounts to fair use in a work of parody. "Parody is not a species unto itself," explained a copyright attorney not involved with the case but who asked to remain anonymous, "but the general wisdom is that parody is cut additional slack because it's funny." In the last major publishing case involving parody, a court allowed Houghton Mifflin to publish Alice Randall's The Wind Done Gone, but did not clarify the parody issue. After a lower court granted Margaret Mitchell's estate a temporary injunction against the publisher, the 11th Circuit Court of Appeals in Atlanta lifted it, stating that the prior ruling "amounts to unlawful prior restraint in violation of the First Amendment."
Pearson may have a problem proving its case because of the timing of the complaint. "Pearson voiced their objections after the book was published," explained Little, Brown senior counsel Carol Ross, but decided not to take any action at that time to stop the publication, which Pearson acknowledges in the suit. It wasn't until book sales skyrocketed that the publisher chose to file. "My guess is that the court will gravitate to the easier issue: whether Pearson has waived its right to complain about this," explained the anonymous expert.
The Yiddish case has its own unusual aspect: naming Liz Dubelman, whose company, VidLit, produced a movie-trailer— like Web-marketing piece that has been viewed more than two million times. Dubelman's lawyer, Ken Hertz, claims she is "entitled to indemnity since she is an innocent." It's hard to imagine, for example, a publisher suing a marketing company that produced a popular ad for the New York Times. Hertz said, "This is an issue of fair use between two publishers, but it points to the phenomenon that the Internet seems to allow small skirmishes to become more important."
