Judge OKs sales of children's book focusing on Idaho artist
By KEITH RIDLER
Oct. 31, 2017
BOISE, Idaho (AP) — A fictional biography for children of a self-taught Idaho artist whose work appears in museums around the world went on sale Tuesday after a federal judge ruled the author likely didn't violate copyright laws.
U.S. District Court Judge B. Lynn Winmill on Monday ruled that Allen Say's "Silent Days, Silent Dreams" is not likely to infringe on James Castle's work because it falls within fair legal use for purposes such as teaching or scholarship.
About 28 of the 150 illustrations in the children's book are Say's copies of Castle's art, Winmill notes.
The Idaho-based James Castle Collection and Archive sought a temporary restraining order to halt book sales because it hadn't given Say permission to use Castle's art. But Winmill denied the request, saying Say and publisher Scholastic Inc. would likely prevail on the merits of the case, which remains active.
The James Castle Collection and Archive referred questions to their attorney, Juliette White, who didn't return a call from The Associated Press on Tuesday.
Castle, born two months premature in 1899 in southwestern Idaho, was deaf from birth. At age 10, he lived for five years in south-central Idaho at the Gooding School for the Deaf and Blind but was never able to speak or write. He returned to southwestern Idaho where he created thousands of artworks using various materials, including soot and his own spit. He died in 1977.
The 80-year-old Say, who lives in Portland, Oregon, in 1994 won the Caldecott Medal for what judges said was the best American picture book for children. A request for an interview from The AP sent through workers at a local bookstore where he does readings didn't get a response.
In an author's note to his book, he wrote that his first encounter with Castle's work gave him the same feeling as when he first viewed work by Vincent van Gogh, the famed Dutch painter.
Say's book on Castle is written from the perspective of Castle's fictional nephew. In the author's note, Say said he used soot and spit and other at-hand materials available to Castle to "emulate his unschooled style." The fictional biography includes Castle being bullied by classmates for being deaf and mute.
"In essence, Say created a version of Castle as a self-taught artist who was isolated by his disabilities and driven by his artistic passion, ultimately finding salvation in his art from a harsh world," Winmill wrote.
Winmill said Say's book met the fair use doctrine for limited use of copyrighted work without the owner's permission by adding something new, or "transformative," to the existing work.
"The story of James Castle celebrates his unique talents, his perseverance, and the power of art to provide a pathway to self-expression for the marginalized," Scholastic Inc. said in a statement posted on the company's website following the court ruling.
Rediscovered Books in Boise on Tuesday offered the book, which costs $21.99, for sale after the temporary restraining order had been denied.
"I think it's a beautiful book," said Laura DeLaney, co-owner. "It is a story that's important to tell to let people know about this incredible found-material artist."
A Children's Place Bookstore in Portland, Oregon, is Say's home bookstore and one of the few places he appears in public, said manager Kira Porton-Jones, who viewed parts of "Silent days, Silent Dreams" while it was still a work in progress.
The lawsuit "makes me sad because he crafted the book very lovingly and you can tell it was done with much passion," she said.
Say is scheduled to appear in the bookstore for a reading and to sign copies of the book on Dec. 9, she said.