Is copying the style of an artist in an illustrated biography copyright infringement? CASTLE v. SCHOLASTIC

A copyright is a set of exclusive rights granted to someone that creates an original work of authorship. Copyright grants an author the exclusive right to reproduce, distribute, perform, display, transmit and make derivative works based on the original. If someone other than the copyright owner attempts to exercise one of these exclusive rights that can be considered copyright infringement.

An important aspect of copyright is that creative expression is protected, facts are not eligible for copyright protection. This is particularly important in biographical works. Two different people are free to write about the same historical figure because facts about that person’s life are not copyrightable. If a biography is made about an artist, things can get more complicated. The author will want to include examples of the artist’s copyrighted works in the biography. Reproducing a copyrighted work can be considered copyright infringement.

The exclusive rights granted to a copyright owner have some limits. Fair use is an element of copyright law that excuses a defendant from liability for copyright infringement. The fair use doctrine of copyright law will allow creators to borrow a certain amount of copyrighted works owned by others. A fair use is any copying of copyrighted material done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work. Such uses can be done without permission from the copyright owner.

When a court is presented with a fair use defense the court will consider four factors. The four factors in a fair use defense are: (1) the purpose and character of your use (2) the nature of the copyrighted work (3) the amount and substantiality of the portion taken, and (4) the effect of the use upon the potential market.

A biography can be considered a commentary about a person, therefore fair use can apply, but there is no bright line rule to exactly how much of a copyrighted work can be used before a fair use becomes copyright infringement.

JAMES CASTLE COLLECTION AND ARCHIVE v. SCHOLASTIC, INC. AND ALLEN SAY, 1:17-cv-00437 (D.ID 2017) is a case which presents an interesting fact pattern which touches on the use of artwork used in the biography of an artist.

The primary question posed in this case is whether the unauthorized reproduction of artwork used in a fictional biography of the original artist qualifies as a fair use.

Plaintiff owns the copyrights to the works created by James Castle. James Castle is a noted artist from Idaho. Defendant Allen Say wrote and illustrated a children’s book on Castle’s life, which was published by Scholastic. Defendant’s book is an “imagined biography”. The book is written from the perspective of a fictional nephew of James Castle.

The book includes about 150 illustrations drawn by Say. 28 of those illustrations are imitations of Castle’s works, and other illustrations are depictions of events in Castle’s life drawn in the same style used by Castle.

Plaintiff sued Defendants for copyright infringement and moved for entry of a temporary restraining order to prevent the sale and distribution of the book. Defendant responded that their use constituted a fair use and the temporary restraining order should be denied.

The court denied the motion for temporary restraining order because it found that Defendants were likely to prevail on a fair use defense. In its decision the court reviewed each of the fair use factors.

The court found that the book was transformative since Defendant used the illustrations to create his own version of Castle’s life. Therefore As to the first factor, the purpose and character of the use, favored fair use even tough the book was commercial in nature. The court found that the nature of Castle’s works were within the core of intended copyright protection however, because Defendant’s use was transformative the nature of the work carries less significance.

As to the amount and substantiality of the use, the court found that this factor favored the Defendant. The copying of Castle’s art was necessary to enhance the biographical narrative, told largely through Say’s own illustrations that were not exact copies, but mimicked Castle’s style.

Finally, the court held that the fourth factor, the effect on the potential market for the copyrighted work, likely weighed in favor of the Defendants because the Plaintiff “dislikes the way Castle is portrayed in the Book and would not have licensed his art for that use.”

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