Castle Collection v Scholastic: it is likely about fair use

Castle Collection sought to enjoin the distribution and sale of the children’s book, “Silent Days, Silent Dreams”. The Book is written and illustrated by Allen Say and published by Arthur A. Levine, an imprint of Scholastic.

The Book by its author is an “imagined biography” of the artist James Castle. Born in rural Idaho in 1899, Castle was deaf from birth and never learned to communicate orally or in writing. He became a prolific artist, widely recognized for creating works with found materials such as discarded papers and food containers. His work is now found in museums, art galleries, and private collections all over the world.

The Book, written for children from the perspective of Castle’s fictional nephew, includes approximately 150 illustrations, all drawn by Say. About 28 of those illustrations are Say’s copies of Castle’s art, while the other illustrations are Say’s own depictions of various events in Castle’s life, drawn in a style similar to that of Castle. Say explained that he tried to “mimic” and “emulate Castle’s unschooled style” by “using the same kinds of odd materials Castle had used.” Reviewers have noted the similarity between Castle’s works and Say’s illustrations. These illustrations, along with text, describe a chronological narrative of the artist’s life.

Castle Collection alleged that it is the exclusive owner of all copyrights to the works that it alleged were infringed by the Book. The Castle Collection has not authorized defendants Say or Scholastic to use any of its copyrighted works, nor has the Castle Collection been involved in any way in the creation of the book. The Book contains 28 illustrations that are unauthorized infringing copies of Castle’s artistic works, according to the Complaint.

In this case, the Book has been distributed to many book sellers, and Castle Collection asked the Court to order that defendants take affirmative steps to contact those book sellers to halt sales of the Book. This relief is treated as a mandatory injunction because “it orders a responsible party to take action.” A mandatory injunction “goes well beyond simply maintaining the status quo pendente lite and is particularly disfavored.” The “district court should deny such relief unless the facts and law clearly favor the moving party.” In plain terms, mandatory injunctions should not issue in “doubtful cases.”

The Book in this case is transformative. The Book is an attempt by Say to “see the young Castle’s silent world through his eyes.” The Book mainly draws on facts but also includes speculation based on reasonable inferences from facts or just pure speculation. In essence, Say created a version of Castle as a self-taught artist who was isolated by his disabilities and driven by his artistic passion, ultimately finding salvation in his art from a harsh world. That version of Castle emerges from Say’s illustrations themselves and their placement at various points in the chronological text. In other words, the illustrations combine with the text to create Say’s version of Castle. In this sense, the illustrations transform Castle’s art into a version of Castle’s life story, a version created by author and illustrator Say. Because Say’s use of Castle’s art is transformative, the fact that the Book is a commercial production “is of little significance.”

The Castle Collection identified 28 illustrations that it claimed are infringing, out of the 150 illustrations in the Book. Here, the copying was necessary to enhance the biographical narrative, told largely through Say’s own illustrations that were not exact copies, but mimicked Castle’s style. This process became literally transformative in instances where a Castle rendering was changed by inserting Castle himself or other characters into the drawing. This factor weighs in favor of Say and Scholastic.

The court has found that three of four factors of fair use likely favor defendants, while the one that favors the Castle Collection is of little significance. Because, the defendants are likely to prevail on their fair use defense, the Court couldn’t find that the Castle Collection is likely to prevail on the merits. Consequently, the motion for temporary restraining order has been denied.