A new children’s book—Silent Days, Silent Dreams, an “imagined biography” of artist James Castle (1899-1977)—includes works of art and drawings that are virtual copies of Castle originals. The James Castle Collection and Archive, LP, which owns all Castle copyrights, filed suit on October 27, 2017, asking the court for a temporary restraining order blocking the book. On October 30, a federal court in Idaho ruled against the Castle collection.
Castle, born in rural Idaho, was deaf from birth and never learned to communicate orally or in writing. He became a prolific artist and is 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 auction record for an artwork by Castle was set recently when Christie’s sold an untitled construction for $43,750 (including buyer’s premium) on September 20, 2017, in New York City.
James Castle original.
The book, written for children from the perspective of Castle’s fictional nephew, includes approximately 150 illustrations, all drawn by the author, Allen Say (b. 1937). 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 Castle’s. The author’s note in the book explains that Say tried to “mimic” and “emulate [Castle’s] unschooled style” by “us[ing] the same kinds of odd materials [Castle] had used....” 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.”
The Castle collection, which had not been involved with the creation of the book, argued that it is the exclusive owner of all copyrights to the works that it alleges are infringed by the book and further argued that it had not authorized Say or the publisher to use any of its copyrighted works. “Many of the illustrations are intended to evoke and imitate the artistic style of James Castle. However, over two dozen of Mr. Say’s illustrations are far more than a tribute, comprising substantially similar if not virtually identical copies of James Castle’s distinctive, singular works.... The Castle Collection has not authorized Mr. 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. The book contains nearly 30 illustrations that are unauthorized infringing copies of James Castle’s artistic works,” the complaint stated.
The court ruled that the book is an attempt by Say to “see the young [Castle’s] silent world through his eyes” and “mainly draws on facts but also includes speculation based on reasonable inferences from facts.... 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. That version of Castle emerges from Say’s illustrations themselves and their placement at various points in the chronological text. In other words, the illustrations combine with the text to create Say’s version of Castle,” the judge wrote.
James Castle original.
The court ruled that copying was “necessary to enhance the biographical narrative, told largely through Say’s own illustrations that were not exact copies, but mimicked Castle’s style. This process became literally transformative in instances where a Castle rendering was changed by inserting Castle himself or other characters into the drawing.”
“The Castle Collection owns and maintains the world’s largest collection of artistic works by James Castle, including his drawings, handmade books, constructions, source materials, family photographs, and other historical documents. James Castle created art nearly every day of his life, and almost all of the works that survived his death are now owned by the Castle collection,” the Castle collection argued. “The Castle Collection is the sole and exclusive owner of all rights, title, and interests in and to the copyrights to the James Castle works identified herein. As a result, the Castle Collection has the exclusive right to reproduce, distribute, display, and create derivative works from the copyrighted works. The mission of the Castle Collection is to cultivate and preserve James Castle’s artistic legacy. In doing so, the Castle Collection seeks to ensure that accurate and reliable scholarship regarding James Castle is available to the public and that the value and importance of his art continues to grow.”
James Castle original.
Originally published in the January 2018 issue of Maine Antique Digest. © 2017 Maine Antique Digest