Group pushes lawsuit saying book infringes on artist's work

A group that preserves and promotes the work of a deaf, self-taught Idaho artist whose creations appear in museums around the world is fighting an attempt to dismiss its copyright infringement lawsuit against an Oregon children's book author.

The Boise, Idaho-based James Castle Collection and Archive said in documents filed Tuesday in federal court that Allen Say's book "Silent Days, Silent Dreams" steals images created by Castle, who died in 1977, and that its lawsuit should be allowed to move forward.

About 28 of the 150 illustrations in the children's book, described in the opening pages as a work of fiction about Castle, are Say's copies of the artist's work. The lawsuit filed in October seeks up to $150,000 for each allegation of copyright infringement.

A federal judge that month denied the group's request to temporarily halt book sales until the lawsuit plays out. U.S. District Judge B. Lynn Winmill, who described the book as a "fictional biography," said it is not likely to infringe on Castle's work because it falls within fair legal use for purposes such as teaching or scholarship.

Say and publisher Scholastic Inc. asked last month that the lawsuit be dismissed.

The James Castle Collection and Archive responded Tuesday that the book does not fall within fair legal use because it doesn't add something new or transformative to Castle's work.

"Say's use of Castle's work gives the original no new expression, no new meaning and no new message," the group says, noting that the book is for commercial gain.

Scholastic Inc. spokeswoman Anne Sparkman said Wednesday that the company doesn't comment on pending litigation.

Castle was born deaf in 1899 in southwestern Idaho and was never able to speak or write. But he created thousands of works of art using various materials, including soot and his own spit.

The 80-year-old Say, who lives in Portland, Oregon, won the Caldecott Medal in 1994 for what judges said was the best American picture book for children.

His book 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."

Bruce DeLaney, co-owner of Rediscovered Books in Boise, said Say's title has been a steady seller but not a best-seller despite being about a local artist. He said that might be because the James Castle Collection doesn't back the book.

"If there was a James Castle book that they were excited about, it would sell a lot better here in the valley because they have a lot of influence," he said.