Boise & Garden City

Update: Judge won’t stop release of book re-creating Idaho artist’s works

At left, a work by Boise artist James Castle. At right, an illustration by Allen Say included in "Silent Days, Silent Dreams."
At left, a work by Boise artist James Castle. At right, an illustration by Allen Say included in "Silent Days, Silent Dreams."

U.S. District Judge B. Lynn Winmill on Monday denied the Castle Collection’s request for a temporary restraining order to stop the Oct. 31 release of the children’s book “Silent Days, Silent Dreams.”

“Because the defendants are likely to prevail on their fair use defense, the Court cannot find that the Castle Collection is likely to prevail on the merits,” Winmill wrote in his order.

In light of the court’s decision, the book will go on sale on Tuesday, October 31, as planned, according to Scholastic spokesperson Kyle Good.

Here’s our original story about the lawsuit, published Oct. 27:

A new children’s book about a Treasure Valley artist slated to hit bookstores on Oct. 31 might find itself shelved in a different way.

The book, “Silent Days, Silent Dreams,” is a fictional biography about Idahoan James Castle, a self-taught artist whose works can be found in museums, art galleries and private collections all over the world.

Written for children, the book contains about 150 illustrations by award-winning writer and illustrator Allen Say.

Allen Say Scholastic
Allen Say. Scholastic Inc.

Say, 80, won the 1994 Caldecott Medal for his children’s picture book, “Grandfather’s Journey,” which details his grandfather’s voyage from Japan to the United States. He lives in Portland.

But the James Castle Collection and Archive, which has the largest privately held collection of Castle’s works, believes Say’s illustrations cross the line. It is suing Say and his publisher for copyright infringement in federal court in Boise.

Many of Say’s illustrations “are intended to evoke and imitate the artistic style of James Castle,” the archive says in its lawsuit filed Oct. 19.

However, about two dozen of the illustrations “are far more than a tribute” and are “similar if not virtually identical copies” of Castle’s work, the lawsuit states.

silent days
The cover of Say’s new book. Scholastic Inc.

The archive also claims that the book depicts Castle “in a questionable light based on unverifiable theories about his life and abilities.”

“For example, the book portrays James Castle as an unhappy, developmentally disabled child who was abused by his family and locked in an attic.” Say also describes Castle as “autistic and dyslexic.”

“None of these theories about Castle’s life are consistent with the available evidence, nor can any of them be verified,” states the claim.

Say, reached Friday at his home in Portland, said, “I have no comment on anything, thank you,” and hung up the phone.

Scholastic Inc., one of the world’s largest children’s books publishers, is putting out Say’s book.

The book was just printed and is slated for release in Idaho on Tuesday. The archive has also asked U.S. District Court Judge B. Lynn Winmill for a temporary injunction prohibiting Scholastic from releasing the book that day.

Winmill will hold a telephone hearing on that matter at 10 a.m. Monday.

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Above, a work by Boise artist James Castle. Below, an illustration by Allen Say included in "Silent Days, Silent Dreams." James Castle Collection and Archive/Scholastic, taken from court documents

The archive also seeks damages of $150,000 for each copyrighted work infringed, and for the destruction of all copies of the book.

Scholastic on Friday asked the court not to grant the injunction, a “drastic remedy ... that would stop the distribution of an imaginative and critically acclaimed children’s book before this court has had the opportunity to fully explore the very important issues.”

Its attorneys say the book falls under the fair use doctrine of U.S. copyright law. “As an imagined biographical retrospective of a real-life artist written for children, the book is a work of ‘scholarship,’ one of the core examples of fair use,” states the company’s response in court.

“This is not a ‘run-of-the-mill copyright infringement case’ involving counterfeits or piracy ... (but) a request to stop the publication of an educational children’s book that the Castle Collection argues went too far in seeking to capture the essence of Castle’s work.”

Scholastic also chastised the archive for waiting until a week before the book’s release to seek the restraining order, saying the unexcused delay “impugns the feigned cry of an emergency.”

Castle, the artist

Born in Garden Valley, in 1899, Castle was deaf from birth and never learned to speak or write in a meaningful way.

Castle JCCA credit n
James Castle in an undated photo. Provided by James Castle Collection and Archive

At a very early age, Castle began drawing and creating works with found materials such as discarded papers and food containers. He became a prolific artist, working with a wide range of materials to create his visual works, which included books and drawings made from soot and spit on found papers and sculptural pieces constructed with found materials.

Castle’s work first gained public attention in the 1950s when his nephew came home on break from art school in Portland and realized his uncle’s talents. The nephew’s professors agreed and helped organize an exhibition of Castle’s works, which led to other art shows, including Castle’s first museum exhibition held in the 1960s at Boise Art Museum. Castle was able to attend the Boise Art Museum’s opening reception and see his work hanging on museum walls.

Castle died in Boise in 1977.

In the past two decades, as interest in self-taught artists has grown, Castle has gained international acclaim. He is now considered one of America’s foremost “outsider” artists.

His work is found in museums and private collections around the world.

In late 2014, his work was featured in an exhibition at the Smithsonian American Art Museum and reported about in the Washington Post.

In the last couple of years, his work has been shown across the U.S. and in Japan, the United Kingdom and France.

Collecting Castle

New York City art collector William Louis-Dreyfus (incidentally, the father of Julia Louis-Dreyfus of “Seinfeld” and “Veep” fame) gradually amassed the largest private collection of Castle’s work, and established the current incarnation of the James Castle Collection and Archive about six years ago. Louis-Dreyfus died in September 2016.

The archive maintains James Castle’s collection of drawings, handmade books and constructions. It also preserves his tools, supplies, and source materials, as well as family photographs and historical documents.

Most of the Castle material owned by the archive is stored in Boise, where it is managed by former Boise gallery owner Jacqueline Crist.

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At left, a work by Boise artist James Castle. At right, an illustration by Allen Say included in “Silent Days, Silent Dreams.” James Castle Collection and Archive/Scholastic, taken from court documents

Despite having the largest archive of Castle material, the archive says it was never contacted by Say. It learned about his book in September 2016 from the Boise Public Library, which planned a November book-signing event with the author in conjunction with the book’s release.

Library Director Kevin Booe told the Statesman that event “has been mutually postponed with no plans to reschedule at this time.”

The archive says it tried to contact Say several times to ask him to come visit the collection and learn more about Castle, but Say did not respond. The collection says it also wrote to Scholastic and asked to preview a copy of the book for accuracy, but it says Scholastic declined the request.

Two months ago, the Castle Collection was finally able to obtain an advanced review copy of the book via eBay.

“Only then was the Castle Collection able to view the actual illustrations in the soon-to-be published book and see that many of the illustrations by Allen Say were copies of artistic works by James Castle which infringed the copyrights owned by the Castle Collection,” its lawsuit states.

The city of Boise has embarked on a major project to restore the former home of artist James Castle to its original state and to expand it as a space for cultural programs, galleries and an artist-in-residence program.

Cynthia Sewell: 208-377-6428, @CynthiaSewell

Castle in the courtroom

This is not the first time Castle’s artwork has ended up in court.

Born in Garden Valley, Castle lived much of his life in Northwest Boise, including nearly five decades in a house on Eugene Street. Jeannie and Susan Schmidt bought that Boise home in 1997. “I’m a history buff,” Jeannie Schmidt told the Statesman in 2012. “I thought it would be cool to own a piece of Boise history.”

Castle was well-known to have secreted away his drawings and constructed figures in nooks, crannies and other hiding places. Jeannie Schmidt thought there might be a possibility of one day finding a piece of Castle’s art, even though his family had removed boxes of it before they left.

After living in the house for 15 years, while tearing out some old drywall in the sleeping porch, the Schmidts found two Castle “books” — one of the artist’s obsessions was bound and printed words and pictures, and he made countless versions of his own. In the attic space above that wall, they found three bundles that contained 151 pieces of art and about 30 books.

At the time, pieces of Castle’s art were selling for anywhere between $500 and $50,000, making the find worth thousands of dollars. Jeannie Schmidt argued that since she found the Castle works in a house she owned, it was hers to sell, keep or give away.

After learning about the Schmidts’ discovery, Castle’s remaining relatives sued in Ada County to gain ownership. Their lawsuit claimed that the art was mislaid property, intended to be given to a sister, and that the Schmidts would be required by law to hold it in safe keeping for the actual owner.

A 4th District judge ultimately agreed. “ ‘Finders, keepers’ is a playground chant, not a legal doctrine,” Judge Deborah Bail said in her June 2012 ruling. “In Idaho, the person entitled to identifiable mislaid property is the owner and his or her heirs, not the finder.”