A zochen vay! (“What a pain!) That’s what Barbara Davilman and Ellis Weiner might’ve said when they were served with a lawsuit by Pearson Education, the publishing company that owns the copyright to the Dick and Jane reading primers (Primer Spoof With Yiddish Faces Suit (in English)). I’ve posted here about their adorable Yiddish with Dick & Jane, a send up of the children’s readers with which we all grew up. Before publishing, Little Brown, their publisher negotiated an agreement with Pearson which provided for several prominent warnings on the book saying it “has not been prepared, approved or authorized by the creators or producers of the ‘Dick and Jane’ reading primers for children.”
So nu, what’s the problem? Well, it appears that Pearson (for a book publisher, it seems to have very poor judgment about what makes a successful title) thought Yiddish with Dick & Jane was going to turn out to be some shmate that would cause nary a ripple in the publishing world. Say what? You mean to tell me that they couldn’t tell that a Yiddish spoof of Dick & Jane wasn’t going to tickle the fancy of Jews and non-Jewish Yiddish lovers everywhere??
Now that the book is selling like hotcakes (ranked #74 at Amazon.com), Pearson’s changed its tune. “Not so fast, Mr. Big Shot!” say the real Dick & Jane. They claim that Yiddish With Dick & Jane is not a parody (which would be protected speech under copyright), but an imitation (unprotected). Huh? How is taking an iconic, but vacuous book like Dick & Jane and turning it into a knowing moral fable replete with Jewish homosexuals, philanderers, schnorrers and other reprobates–how is this NOT a parody?? Is this book a parody? Is the pope Catholic?
I say: “A shande” on Pearson for trying to schnorr a few shekels from Little, Brown once they discovered the book was a major hit. Where’s my proof?
Earlier this month, when Pearson filed the suit, its lawyer, Stephen W. Feingold, wrote to the plaintiffs offering to discuss a settlement and saying that it had initially “decided not to sue over a title it thought would not be commercially successful.”
Why is this case important? A few of my readers may’ve read the numerous posts I’ve written about copyright and fair use. As someone who was once threatened with an infringement lawsuit for a blog post I wrote, I’m very concerned about the misuse of copyright by rights holders. Some in the world and music industry argue for a draconian interpretation of their rights which may not withstand the test of a legal challenge. I’m guessing that any judge with a bit of saychel and who’s a maven when it comes to knowing a good joke will throw this case out with prejudice and award legal fees to the defendant.
Let’s show ’em what we think of schnorrers: go out and buy the book and send e mails to Pearson and its lawyer telling them: Gay aveck! (“Go away!”)
Julia Schenzinger says
hello… i just wanted to say that i had sent you an email earlier (from a different email address than i am posting here), and after scribbing it out frantically and hitting “send” before i chickened out, i had totally forgotten to write something into the “subject line” of the email…
sorry about that!
i wanted to say something here so that you did not think my letter had been a piece of spam…
Dave Nadig says
Well, given that NONE of the reviews of the book consider it Parody, I can see the point. The book simply appropriates a set of (protected) cultural icons to tell an UNRELATED humorous tale mixed with a language lesson.
It’s absolutely NO different than if I took, say, the cast of the Sopranos and wrote a book in which the main characters go to disneyland, and have a hillarious time teaching Italian to the patrons of Tony’s restaurant. According to the infamous 2 Live Crew supreme court case on which modern parody law is based, the new work has to at its heart be a criticism and commentary of the original work. Even just reading the first page of this book it’s obvious that the point is NOT to make a satirical commentary on Dick and Jane, but rather to use the structure of Dick and Jane to write a funny book, and teach some Yiddish. All and well – except they used the wrong names.
You may not like it, but I find it EXTREMELY difficult to imagine them winning this on first ammendment grounds. It was very poor judgement on the part of the publisher, nothing less. Just because it hits a book you think is cute, doesn’t change the actual law.
Richard Silverstein says
Dave: I don’t think you fully understand the laws of copyright & fair use and you certainly don’t understand the literary defintion of parody. First, the determination of whether a book is a parody or imitation is not based on whether a reviewer says it is or not. Second, you make the grand, sweeping statement “none of the reviews consider it parody.” How did you arrive at that? How many reviews did you read? Not every one I presume. So how can you justify what you wrote?
Your Sopranos example is wrong. If the cast of the Sopranos or a writer for the show wrote a book that used the premise or concept of the series to make a relevant social, political, moral or educational statement then it would be considered parody. Your example above would make a pretty lousy book & I agree that it wouldn’t appear to be parody. But that’s not what Yiddish with Dick & Jane is. Let’s take a look at the Princeton Encyclopedia of Poetry and Poetics (1974) says on the subject:
All of the italicized words above would characterize the intent of the authors of Yiddish with Dick & Jane and so validate the book’s defintiion as parody.
No one says they’ll argue this on First Amendment grounds. It’ll more likely be argued under copyright law and fair use which includes parody as a form of protected use (I believe, I’m not a lawyer though).
I don’t like the book because it’s “cute.” I like it because it uses the original to shed deeper light on the changes in moral values that have occured between the white bread, morally “pure” era in which the original was published and now. I don’t even like the way in which they employed the Yiddish phrases in the book because they didn’t stay true to Yiddish usages & because their family scenes were far too tame and bland (a bit like the original). But I applaud the general idea of using Yiddish in such a parody since it piques people’s interest in their heritage (remember that the original Dick & Jane characters didn’t seem to have any ethnic identity–now that’s another quality that qualifies this book as parody).
Dave Nadig says
We can agree to disagree. I’ve been personally involved in several fair use lawsuits over the years. And regarding the Soprano’s example, I’m actually quite sure I’m right on this. I can not appropriate someone else’s work just to make an educational statement of my own, as you say. I can’t write a book in which Joey Soprano teaches itallian cooking. I just can’t. It’s main purpose is NOT to parody the soprano’s, rather, its to teach italian cooking. Maybe I’m wrong. Maybe it will be found that the entire and main point of this book is to critique the D&J series, not to teach Yiddish or make it’s own cultural points.
That was actually the entire point of the main case on this – 2lC – the decision which informs all of this, was very explicit in defining what a LEGAL parody (regardless of the literary definition), and it’s pretty clear to me this doesn’t qualify SO unquestionably as to not warrant the owners of the D&J intellectual property at least having an opportunity to challenge it.
Hasbro made this mistake decades ago. They failed to challenge the first “whateveropoly” that someone came up with, and as a consequence, their brand, and potential profits, have been MASSIVELY dilluted. The owner of IP like D&J has every right to try and defend this. (and in fact, in the current coporate environment would be LIABLE to their shareholders if they FAILED to do so. Seriously. While Pearson is UK based I believe, if this was a US public company and the management FAILED to attempt to defend this, they would actually be liable for criminal negligence under Sarbanes-Oxley. Seriously.)
As for waiting until it was succesful – sorry, don’t buy that reason to hate Pearson either. One of the key issues in infringement is the scope of the copy. A college student stands a better chance here than a succesful book. If the book had sold 500 copies, it actually would be less likely to be considered infringing. If it sells 1,000,000, it crosses the thresholds of “effect on potential market or value.” A non-infringing work (by legal definition) actually BECOMES an infringing work once it reaches a certain (only defined by judges) level.
But hey, not my ax to grind here. I just get tired of everyone always assuming “the little guy” is right in matters like this (not that LB is the little guy here at all). You may think the case will LOSE, but that doesn’t make it “draconian” – this is two industry giants with legitimate differences of opinion. I will (and I mean this) give you $250 through paypal if this gets to a judge and is dismissed on summary judgement – the test of whether its just an abuse of the system or a real beef.
Richard Silverstein says
So you concede that the book may be a parody according to literary definitions of it. Yet you still contend that it is not a parody? Seems to me you have a problem there. My wife is an attorney, though she doesn’t practice copyright law. She told me that the defendant (the Yiddish with Dick & Jane folks) would call expert witnesses (literary scholars) to bolster their contention that the book is a parody by literary standards. She tells me that a judge would be a fool to ignore such evidence. Now, I’m sure there are a good number of such folk on the bench & I can’t say how every judge would rule in this matter. But I know that the very strong likelihood is that Pearson will lose.
Since you’ve established your bona fides as someone experienced with fair use lawsuits, let me establish mine. First, my academic field was Comparative Literature in which I completed all course work toward a PhD. So I too know something about parody as a literary style. In addition, a journalist accused me of violating her copyright in a case that clearly would’ve protected me under the fair use doctrine had it gone to trial.
My friend, this book is a parody. It walks like a parody, talks like a parody & smells like a parody. Let’s stop talking about yr. imaginary Sopranos book since it’s irrelevant to the case at hand.
And by the way, did any of the fair use suits you were involved in involve distinctions between imitation & parody? If not, then again your experience would not be terribly relevant to the case at hand.
I’m sorry to say you sound like one of those copyright absolutists (whether corporations or individuals) who can be so injurious to society, innovation and the free expression & exchange of ideas. That being said, am I in favor of copyright as a concept? Yes, but in terms that retain all proper rights for those enaged in fair uses. Does Pearson have a right to defend its copyright? Sure. But is this case a good one for them to prosecute? No. This case will either not get to court or if it does will probably be summarily dismissed. Pearson will be somewhat of a laughing stock for pursuing it.
As for your contentions about Hasbro’s Monopoly game. You say profits were massively diluted. Couldn’t that be a slight exaggeration? You mean to tell me that Hasbro has not massively profited from its sales of this game? Come on, of course it has. Scores of millions of American children and families have bought this game over many decades. I’m not making any judgment on whether it should have pursued a claim or not. But I don’t believe in misplaced sympathy for corporate titans.
What really troubles me about Pearson’s position (aside from its spurious contention that the book is an imitation) is that the company saw the Yiddish with Dick & Jane book before publication, had a chance to read it & determine whether it was parody or imitation, then came to an agreement with Little Brown about a warning label for the book, and then AFTER the book’s success Pearson decided to sue for infringment. They had every opportunity early in the game NOT to reach an agreement and instead advance their infringment position. Yet they chose to reach an agreement. Now, they want to take it all back and puruse the claim that was open to them all along before agreeing with Little Brown. That’s what makes this so unkosher.
Dave, I don’t think I can take you up on your generous offer of providing me $250 on summary judgment (it would be such easy money because your side will lose IMO). If I win, how ’bout we settle on all that work you’re doing for Andrew & me on creating our new website?? If I lose (heaven forfend) I can’t help you do the same since I don’t have the technical background (alas).
Dave Nadig says
Hey, we’re both intellectuals with our own backgrounds in this stuff. And I do believe that there is a distinction, pretty clearly, between what the Supreme Court has ruled parody, and what the dictionary says. I really am happy to put that $250 on the line. You can owe me dinner, I’ll give you $250.
Neither of us will ever collect, because the parties in this case are both large publishers who will settle it quickly for about 3% of the legal fees invovled in getting it to court, most likely.
And my point on the obligations of corporations still stand. If I, in my day job at my public company, believe that someone has violated my intellectual property, and there is any kind of paper trail, and that infringement then crosses the threshold of being commercially relevant, I pretty much have to:
a: sue you
c: get sued by my shareholders
d: establish an extensive internal paper trail that the suspected infringement could not possibly, under any circumstance, be considered infringing (which is only a defense against C).
I’m totally serious. That’s an actual position I’ve been put in. That’s the kind of advice I was given by personal counsel.
As for the parties in this case – I can’t POSSIBLY imagine that they actually had any kind of written agreement that did not disclaim the infringement up front. That would be a mind blower. Are you telling me that they actually had some sort of contract, stickered the book, and then they still sued them? Are you sure? Because that would just be truly negligent laweyering on LB’s part.
Dave Nadig says
Oh, and FWIW (and this has gotten silly) I consider myself anything BUT a copyright absolutist. In fact, i’ve been engaged in a letter writing tiff with Marvel for their frivolous lawsuit against NCsoft – maker of a game called “city of heros”.
In that case, Marvel is claiming that a toolset in the game, which allows players to essentially “paint” a superhero, makes it POSSIBLE for someone to make a character which might look like a Marvel superhero, and thus that toolset is by itself infringement. A scary, pre-ENDUCE act abuse, if you ask me. The remedy suggested is that NCsoft design their tool so that it is actually impossible to reproduce a copyrighted image, no matter how hard one tries. So, for instance, they would have to remove the color green from the palette, because someone might make someone that looks like the incredible hulk. Highly ridiculous. No different than suing photoshop because it’s possible to paint a reproduction of a copyrighted artwork.
(incidently, did you know you cant scan or manipulate pictures of US currency in photoshop? It actually has an algorithm for detecting it. A buddy of mine does all the marketing work for Crane Paper, the maker of money paper, and he had an IMPOSSIBLE time working with any of the images he shot in their facility. Wierd world.)
Richard Silverstein says
Dave: If you haven’t you should really read the NY TImes article I link to in this post. The authors describe the agreement they had with Pearson & make clear that they negotiated w. Pearson very specific warning labels for their book that would make the reading public aware that this book was NOT Fun with Dick and Jane (or whatever the original was called) & not affiliated with it in any way. Do you have the book? Have you read the disclaimer?
I don’t know whether there is a written agreement or not. Of course, it would be better for the parody book if they had one. And I know an oral agreement is considerably weaker. But I see no reason to doubt the account provided by the writers of the book saying they had an agreement w. Pearson. Besides, if they were wrong in this acct. then Pearson had every right to contradict it in the NYT article (unless of course the journalist was incomplete & didn’t even ask for Pearson’s account of this matter). The fact that they didn’t indicates to me that both sides at least admit that they had some kind of agreement, even if it was only oral.
Those 2 stories about Marvel & your friend at Crane Paper are really wild. Re: Marvel the NYT has written a piece about draconian copyright claims made by American companies & the ensuing attempt to close down expression & ideas. They didn’t use the Marvel example, but had equally horrifying ones.