What A 'Goodnight Moon' Spinoff Tells Us About Copyright Law

Our reporter wanted to write a prequel to Goodnight Moon. He ended up on the phone with lawyers.

STEVE INSKEEP, HOST:

Now we ask how far copyright really extends. The law can't be too strict. Here's how Keith Romer of NPR's Planet Money team discovered that tension.

KEITH ROMER, BYLINE: Every night in my house, it's the same story.

In the great green room, there was a telephone, and a red balloon and a picture of the cow jumping over the moon.

That's "Goodnight Moon" by Margaret Wise Brown. My daughter loves the book.

Do you see the bunny rabbit going to sleep?

UNIDENTIFIED CHILD: Bunny rabbit going sleep.

ROMER: Me? I'm a little bored with it.

Do you see the quiet old lady just sitting by herself knitting, wondering what happened to her dreams?

UNIDENTIFIED CHILD: Yep.

ROMER: So I wrote my own version, a prequel to "Goodnight Moon." They're my words, but they never would have existed without the original "Goodnight Moon." And I wanted to know, could I sell this book? I called an old friend of mine, a lawyer named Alex Kaplan. He said the answer to the question turns on a legal doctrine called fair use. One key issue in fair use? Money.

ALEX KAPLAN: The statute says you have to think about whether the use is for a commercial purpose or is for nonprofit, educational purposes.

ROMER: The fact that I want to sell my book makes it harder for me to claim fair use. But Alex said I still have a shot thanks to this guy.

LUTHER CAMPBELL: Hello, my name is Luther Campbell, a.k.a. uncle Luke, Luke Skywalker, Captain [expletive], sir Luke.

ROMER: Campbell was the frontman for the rap group 2 Live Crew. And back in the '90s, he was sued for his song, "Pretty Woman."

(SOUNDBITE OF SONG, "PRETTY WOMAN")

2 LIVE CREW: (Singing) Pretty woman, ha ha, walking down the street. Pretty woman, girl, girl you look so sweet.

ROMER: Which bore a striking resemblance to this song by Roy Orbison.

(SOUNDBITE OF SONG, "OH, PRETTY WOMAN")

ROY ORBISON: (Singing) Pretty woman, walking down the street. Pretty woman.

ROMER: The case ended up going all the way to the Supreme Court, which ruled in Campbell's favor.

CAMPBELL: Why did I win? Because parody is protected by the First Amendment.

ROMER: The court said 2 Live Crew's parody of Roy Orbison - even though Campbell made money off of it, he could still potentially claim fair use, which means that I could still potentially claim fair use and sell my book. But my lawyer friend, Alex, he said there was something else we still had to consider.

KAPLAN: Are you starting to take a potential market away from the copyright holder?

ROMER: What if the "Goodnight Moon" folks wanted to put out their own prequel or license the rights to someone who did? I could be costing them money. Fair use law tries to create a reasonable middle ground between the rights of people like the "Goodnight Moon" folks and the rights of people like me.

KAPLAN: Really, I think the purpose is to strike the right balance between copyright protection and First Amendment protection because those are kind of antithetical to each other, yet they're both parts of our Constitution.

ROMER: At the end of our talk, I asked Alex if he thought my book could win a fair use case.

KAPLAN: I think you'd have a pretty good argument, but I can't guarantee it.

ROMER: Either way, I can always read my own version at home - kittens and mittens and the little house. Before the curse of the little mouse, I was the cow jumping over the moon. I was the moon. Now, I am nobody. I am mush. Keith Romer, NPR News.

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