District court denies plaintiff’s motion for temporary restraining order enjoining distribution and sale of children’s book Silent Days, Silent Dreams, finding author’s use of artist’s work in “imagined autobiography” was transformative and plaintiff’s copyright infringement claim would likely be defeated by defendants’ fair use defense.

Plaintiff James Castle Collection and Archive LP sought a temporary restraining order against defendants Scholastic Inc. and author Allen Say to block publication of Silent Days, Silent Dreams, an “imagined biography” of the late James Castle, a prolific but reclusive artist whose works have posthumously gained widespread recognition. Written and illustrated by Say and published by Scholastic, Silent Days, Silent Dreams contains approximately 150 illustrations drawn by Say, about 28 of which are Say’s copies of Castle’s works. The rest are Say’s own depictions of various events in Castle’s life, drawn in a style similar to that of Castle.

Plaintiff, claiming copyright ownership in Castle’s artistic works, alleged that Say’s 28 unauthorized copies of Castle’s drawings infringed on its copyrights. Plaintiff sought a mandatory injunction that would have required defendants to take affirmative steps to contact various booksellers to halt sales of the book. The district court refused to enter the injunction, ruling that plaintiff’s copyright infringement claim would likely be defeated by defendants’ fair use defense and therefore would fail on the merits.

The court examined the four fair use factors: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole and (4) the effect of the use upon the potential market for or value of the copyrighted work.

First, the court asked whether Say’s work was “transformative,” or “added something new” to Castle’s existing work. Despite the direct copying of 28 works, the court concluded that Say’s book was in fact “transformative” because Say’s “illustrations transform[ed] Castle’s art into a version of Castle’s life story, a version created by author and illustrator Say.” Thus, the court held that the first factor weighed “heavily” in defendants’ favor.

The court determined that the second factor — the nature of the copyrighted work — favored plaintiff because Castle’s art works are original, “placing them within the core of intended copyright protection.” However, the court held that the third and fourth factors both militated in defendants’ favor. In analyzing “the amount and substantiality of the portion used in relation to the copyrighted work as a whole,” the court concluded that Say’s copying was “necessary to enhance the biographical narrative.” As to the illustrations that mimicked Castle’s style, the court deemed these to be Say’s own drawings and not exact copies. The court did not directly address the portion of the copyrighted works used. Finally, the court (using a rationale usually used in parody cases, which this was not), explained that the fourth factor favored defendants because plaintiff disliked the way Castle is portrayed in the book and would not have licensed his art for that use. Thus there was no effect on the “potential market for or value of the copyrighted work.”

Balancing the fair use factors as a whole, the court found that defendants were likely to prevail on a fair use defense, meaning that plaintiff’s copyright infringement claim would fail on the merits. Moreover, the court explained that the type of mandatory injunction sought by plaintiff was “particularly disfavored” and “available only ‘if the facts and law clearly favor the moving party.’” In light of plaintiff’s failure to show a likelihood of success on the merits, the court explained, it did not have to consider the remaining factors in the injunctive calculus. Thus, the court denied plaintiff’s motion for a temporary restraining order.