The New York Times reports that a Kickstarter campaign to raise money for a sequel to Maurice Sendak’s “Where the Wild Things Are” has run into a legal snag relating to violation of the rights of the estate of Maurice Sendak to “Wild Things.” The project, a poem entitled “Back to the Wild,” written by Geoffrey O. Todd with illustrations by Rich Berner, involves a sentimental journey for Max as he returns with his daughter, Sophie, to see the “Wild Things” 30 years later.
Kickstarter is the world’s largest funding platform for creative projects. It gathers support for films, games, music, art, design, and technology, primarily on the Internet. It was launched on April 28, 2009. It boasts that since then, over $500 million has been pledged by more than 3 million people in funding more than 35,000 projects. It raises money through press publications, blogs, Twitter, Facebook, and other means of attracting pledges of support.
If a project is successfully funded, Kickstarter applies a 5% fee to the funds collected.
The original Kickstarter post initiating the campaign for “Wild Things” was published in May. The authors hoped to raise £25,000 (about $37,270)
HarperCollins Publishers, which published the original book, sent a legal notice Kickstarter on July 3rd, informing it that any such unauthorized sequel would violate the estate’s right to create derivative works.
In a contract with an author, a publisher can not only control the publication of the original work but also creation, publication and sale of derivative works, without express written permission. Derivative works can include sequels, films, videos, TV shows, computer games and even merchandise such as T-shirts and action figures. The copying a DVD is also on the list.
The Star Wars phenomenon is a good example of control of the product. You may have seen myriad sequels, prequels, action figures, toys, games, laser swords, laser light shows, T-shirts, logos, buttons, Halloween costumes and napkins, but God help anyone who didn’t get the OK from Lucasfilm Ltd. If you did a home video of your child in Darth Vader gear, you could be (theoretically) in trouble.
Remember: unauthorized use of copyrighted work is not a victimless crime. And you’re not protected from liability because you’re not selling the copy, or charging people to watch it.
Even quoting passages from the original may be subject to legal action, unless the quotation is subject to “fair use.” Section 107 of the U.S. Copyright Law sets out four factors in considering whether a particular use is fair: Firs there is a determination of the purpose and character of the use. Basically this means whether the use is of commercial nature or for nonprofit educational purposes. But the nature of the copyrighted work is also reviewed. Was the book written to make money or just educate the public? Then there is the amount and substantiality of the portion used in relation to the copyrighted work as a whole. What we’re talking about here is how much you’re using in your quotation. But if you quote the part of the mystery novel in which the killer is revealed, it will probably not go well for you. Next is the effect of the use upon the potential market for, or value of, the copyrighted work. Are you cutting into the author’s and publisher’s profits?
But Kickstarter does not want to be taken into court for violating Maurice Sendak’s copyrights in pushing “Wild Things.”
Google is big on “open use” of published works. And there have been all kinds of difficulties enforcing a copyright to works used and abused by the Internet.
YouTube has a “Content ID system” for scanning videos to compare them with the ten million YouTube samples registered with and provided to YouTube, but the automatic process has had problems and flaws. In 2102, YouTube announced that it had made changes that should fix the difficulties. (Electronic Frontier Foundation)
In an alleged copyright infringement action, the plaintiff must prove ownership of a valid copyright, and that the constituent elements of the work that has been copied are original. (American Bar Association) If the original author pieced together his or her work from other people’s work, as in recipe books, this may prove to be an obstacle to enforcement.
It is important to realize that a copyright does not protect an idea. An idea may be protected under a patent or a trademark—maybe. A copyright applies to the expression of an idea.
If the copyright owner wins the lawsuit, he she or it can recover the actual damages suffered because of the infringement. Actual damages concern the extent to which the market value of the copyrighted work has been injured or destroyed. Not so easy to do. Anyway, actual damages do not include lost profits. Also difficult to prove.
Before he died last year, at 83, he opposed expressed his opposition to the creation of a sequel to his 1963 classic children’s book.
The name of the work itself, however, cannot be copyrighted. Which is how the story you are reading does not run afoul of the rights of the estate of Maurice Sendak.
But don’t get wise with a publisher by saying something like “so sue me,” when you are advised that you are violating an author’s copyright. Kickstarter has suspended its promotional campaign for the sequel to Maurice Sendak’s “Where the Wild Things Are.” Which is very smart.
By: Tom Ukinski