Grossman LLP | Artist James Castle's Estate Sues Publisher and Author of Forthcoming Book About Castle
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  • Artist James Castle's Estate Sues Publisher and Author of Forthcoming Book About Castle
    Artists’ estates and foundations play a prominent and complex role in the fine art ecosystem, often serving as guardians of a deceased artist’s intellectual property rights, historical records, and legacy.  (See here, here, and here for examples of other recent suits involving foundations or estates.)  In a new lawsuit, the estate of American artist James Castle is suing publisher Scholastic and author/illustrator Allen Say over a forthcoming book about the artist, which the estate claims infringes on the copyrights of dozens of Castle works. 
    According to the complaint filed last week recently filed in federal district court in Idaho, Scholastic is planning to publish a children’s book entitled “Silent Days, Silent Dreams,” a “fictional biography” of Castle, written and illustrated by Say.  The plaintiff is the James Castle Collection and Archive, a partnership whose mission is “to cultivate and preserve Castle’s artistic legacy” and to place his works in exhibitions and collections; the Collection owns a large number of original Castle works as well as the copyrights to his oeuvre.  (Castle, a self-taught artist from Idaho who was born deaf, is known for his work with found and unconventional materials.  He achieved modest recognition during his life, but his work has gained even more attention since his death in 1977; he has been the subject of multiple prominent retrospectives and Castle works are now in the collections of many major American museums.)
    The Collection is not only seeking significant money damages (plus interest, fees and costs), but also asks the Court to enjoin the distribution and sale of “Silent Days, Silent Dreams” and order copies of the book destroyed (this remedy is permitted by federal copyright law).  It claims that the book “contains approximately 150 illustrations” by Say, many of which “are intended to evoke and imitate the artistic style of James Castle,” but over two dozen of which are alleged to be “far more than a tribute, comprising substantially similar if not virtually identical copies” of specific Castle works.  The plaintiff clearly believes the images speak for themselves; the complaint includes page after page of side-by-side comparisons, showing each allegedly-infringed Castle work alongside its allegedly-infringing—often strikingly similar—Say-penned counterpart.  The complaint also alleges that Say would have had access to images of the original Castle works via exhibition catalogues and other online and print sources, many of which are actually listed in the bibliography of “Silent Days, Silent Dreams.” 
    As a purely legal matter, the Collection’s suit is focused on the alleged infringement of individual works; the actual claims asserted are for direct copyright infringement (against both defendants) and for contributory infringement against Scholastic.  But the Collection’s objections to the book seem to run deeper than that.  The complaint notes that the Collection “seeks to ensure that accurate and reliable scholarship regarding James Castle is available to the public,” and expresses concern that the book is inconsistent with this mission.  The Collection alleges that the book, although it is billed as fiction, “portrays James Castle in a questionable light based on unverifiable theories about his life and abilities,” for example by portraying the artist as “an unhappy, developmentally disabled child” who was mistreated by his family, schoolmates, and teachers; the book also claims Castle was autistic and dyslexic, theories that the Collection says cannot be verified and are inconsistent with available evidence.  The complaint also outlines the Collection’s attempts to communicate with Say and Scholastic once it learned (through a third party) the book was in the works; the Collection apparently repeatedly invited Say to visit the Castle archives and offered to review an advance copy of the book.  Those overtures were rebuffed, and the Collection eventually obtained an advance copy only through an eBay reseller.  And in court filings in support of its request for a preliminary injunction, the Collection cites the irreparable harm it will face if the book is published, pointing out that the Collection might be open to licensing Castle works for a children’s book about Castle’s art and life if that project were “[d]one properly,” but that this book “is not such a work”; to allow the book to move forward would be, it argues, tantamount to “forced licensing” in favor of a project the Collection would not have chosen to support.  The Collection further argues that, due to Say’s “inferior infringing copies” of Castle’s works, readers of the book will be “confused not only about Castle’s life and legacy, but about his art itself.”
    This lawsuit reflects the multifaceted role of an artist’s estate.  The Collection here is obviously concerned with what it alleges are infringing copies and derivative works, but it’s also clearly concerned with larger issues of how this book portrays the artist and how Say and Scholastic failed to consult the Collection in creating the book.  Artists’ foundations and estates do not have the exclusive power to act as sole arbiter of how an artist’s life and oeuvre are presented—for example, by scholars, biographers, admirers, or critics—in the marketplace of ideas.  But they can wield copyrights to protect the artist’s creations themselves.  In this suit, a court may have to decide whether, as a matter of copyright law, the defendants came too close to the line between, on the one hand, permissible homage to an artist’s style, and on the other hand, impermissible infringement—and if so, the entire project may be shut down.  We’ll continue to watch this case as it develops.