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James Castle Collection and Archive, LP v. Scholastic, Inc.

United States District Court, D. Idaho

October 30, 2017

JAMES CASTLE COLLECTION AND ARCHIVE, LP, Plaintiff,
v.
SCHOLASTIC, INC.; and ALLEN SAY, an individual, Defendants.

          MEMORANDUM DECISION AND ORDER

          B. Lynn Winmill, Chief Judge

         INTRODUCTION

         The Court has before it a motion for temporary restraining order. The Court held oral argument on October 30, 2017, and took the motion under advisement. For the reasons set forth below, the Court will deny the motion.

         FACTS

         Plaintiff Castle Collection seeks to enjoin the distribution and sale of the children's book, "Silent Days, Silent Dreams" (the "Book"). The Book is written and illustrated by Allen Say and published by Arthur A. Levine, an imprint of Scholastic. It is scheduled for release to the public tomorrow (October 31, 2017).

         The Book by its author as an "imagined biography" of the artist James Castle. Exhibit C Part 2 (Dkt. No; 7-6). 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. In the Author's Note, Say explains that he tried to "mimic" and "emulate [Castle's] unschooled style" by "us[ing] the same kinds of odd materials [Castle] had used Exhibit C Part 2 (Dkt. No; 7-6). Say drew with a bamboo pen on a used shopping bag "as James might have done;" he used burnt matchsticks and sharpened sticks "dipp[ed] in soot mixed with spit;" and he "drew on ninety-year-old letters and envelopes." Id. Reviewers have noted the similarity between Castle's works and Say's illustrations. See Crist Declaration (Dkt. No. 7-2) at ¶ 29. These illustrations, along with text, describe a chronological narrative of the artist's life.

         Plaintiff Castle Collection alleges that it is the exclusive owner of all copyrights to the works that it alleges are infringed by the Book. See Amended Complaint (Dkt. No. 14) at ¶ 4. 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. Id. The Book contains 28 illustrations that are unauthorized infringing copies of Castle's artistic works, according to the Amended Complaint. Id.

         The Book has been distributed to book sellers and is due to go on sale tomorrow (October 31, 2017). The Castle Collection asks the Court to enjoin the sales and distribution of the Book.

         ANALYSIS

         Temporary Restraining Order

         To obtain a temporary restraining order, the Castle Collection must establish that: (1) it is likely to succeed on the merits; (2) it is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in its favor; and (4) an injunction is in the public interest. Winter v. NRDC, 555 U.S. 7, 24 (2008).

         In this case, the Book has already been distributed to many book sellers, and Castle Collection asks 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." Garcia v. Google, 786 F.3d 733, 740 (9th Cir. 2015). A mandatory injunction "goes well beyond simply maintaining the status quo pendente lite and is particularly disfavored." Id. The "district court should deny such relief unless the facts and law clearly favor the moving party." Id. In plain terms, mandatory injunctions should not issue in "doubtful cases." Id.

         Fair ...


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