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Kickstarter and the DMCA: Harper Collins Stops Proposed Sequel to Where the Wild Things Are

By Adam Beasley

After receiving a DMCA takedown notice from HarperCollins Publishers, Kickstarter has removed a campaign (http://www.kickstarter.com/projects/backtothewild/back-to-the-wild-an-illustrated-poem) for a sequel to Where the Wild Things Are. The campaign was started by U.K. illustrators Geoffrey O. Todd and Rich Berner to raise £25,000 for the proposed sequel entitled Back to the Wild. The sequel promised to follow the life of Max and the creatures in Maurice Sendak's classic 30 years into the future.

The authors claim to have "been very careful not to impinge on Mr Sendak's copyright and have taken the necessary legal advice around this whole project." However, HarperCollins, the publisher of Maurice Sendak's preeminent work, was not impressed by the project and sent a DMCA takedown notice to Kickstarter last week. The notice claims that the project will infringe its copyrights in the "characters, scenes and copyrightable elements of the original work." http://www.kickstarter.com/dmca/back-to-the-wild-inspired-by-where-the-wild-things

For HarperCollins, this situation seems fairly clear. It owns the rights to Sendak's work and did not give the U.K. duo permission to create a sequel. Despite the care taken by Todd and Berner, the planned sequel would likely qualify as a derivative work under U.S. copyright law if the same characters were used.

However, in a strange and muted twist to this whole situation, it would also appear that HarperCollins is abusing the DMCA takedown process. The DMCA was created to ferret out actual copyright infringement, not the perceived threat of ancillary infringement. Abuse to the DMCA notice and takedown framework is widespread and has been for many years. Unfortunately, these abuses, like the one at issue here, could have potentially disastrous consequences for creators and free speech. After all, by issuing a takedown request, HarperCollins has effectively restrained speech before it was made. American public policy disfavors such prior restraints. Since Todd and Berner's book has yet to be written, it is unclear whether the authors could claim a fair use exception for their work. Whether they would succeed in court under a fair use theory is up in the air, but by restraining the creation of the book, there is no way to analyze the issue.

Hopefully, this will not effect the robust crowdfunding community Kickstarter has created. Crowdfunding is great for innovative and risky art forms. But to those artists using Kickstarter to create works protected by Fair Use, this is a warning sign.

Adam Beasley is an entertainment and intellectual property attorney in New York City. He can be reached at www.adambeasleylaw.com A previous version of this post can be found at http://adambeasleylaw.com/kickstarter-removes-where-the-wild-things-are-project/.

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