In an opinion last week, Judge Rakoff ruled that children’s illustrated versions of classic novels called “KinderGuides” infringed the copyrights associated with the original works. He rejected the defendants’ arguments that the removal of adults themes and addition of commentary rendered the publishing of the Guides “fair use”:
[T]he mere removal of adult themes does not meaningfully “recast” the work any more 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. As Judge Leval puts it, the question is whether the work produces new insights and understandings. Here, defendants’ expurgated Guides are a vehicle for conveying to children the Novels’ original stories and insights.
. . . .
Defendants suggest that their Guides should be considered commentary, arguing that their works serve educational purposes. As evidence, defendants point to the few pages of analysis, quiz questions, and background information at the back of each Guide. . . .
But tacking on these few pages does not provide safe harbor for an otherwise infringing work. The law is clear that, to be considered transformative criticism, the aspects of a work that reproduce another’s protected expression must be in service of commentary on that work . . . .
Here, defendants’ story summaries do not recount plaintiffs’ Novels in the service of literary analysis, they provide literary analysis in the service of trying to make the Guides qualify for the fair use exception. Indeed, defendants admitted this in open court, when their counsel explained that [defendants] “went to great lengths” to achieve fair use protection. 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.