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

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From Nova Southeastern University:

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, 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. 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.”

. . . .

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.”

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

. . . .

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 doesn’t it?)
  • Adding analysis and two pages of quiz questions

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.”
  • “[T]acking on these few pages [of analysis and quiz questions] does not provide safe harbor for an otherwise infringing work.”  “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.”

. . . .

“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.’”

Link to the rest at Nova Southeastern University

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

  1. I didn’t find it in the OP, but I’m guessing he also used the stories ‘names’ to better ride on the coattails of the books he claims he wasn’t stealing?

    • Interestingly (or not ;-), “Breakfast at Tiffany’s” has two trademark registrations but both are now “dead” (abandoned after 3 years of non-use). “The Old Man and the Sea” has a live registration but it’s for “sandwiches” (trademark goes by the “use”). “On the Road” has several live ones but none for book titles. “2001” has a cool (abandoned) one for disco entertainment.

      “Harry Potter,” on the other hand, has lots of “live” book-related trademarks but only in combination with the rest of the title, e.g., “Harry Potter and the Cursed Child.”

      For hours of fun, go to the USPTO “TESS” web page.

      • Oops, I’m using a ‘Tess’. Oh well, what are the odds anyone else is using that as the name of an AI running a (space)ship some joker went and named ‘Folly’? (I should be safe! 😉 )

  2. “Congress did not provide a use-it-or-lose-it mechanism for copyright protection.”

    I can’t tell you what a day-brightener this was! A great phrase for shooting back at idiots who claim that if a book is “out of print” (however they choose to define it), that gives them the right to give it away online.

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