Are mashups of popular books protected by the fair use doctrine?

Copyright law is a set of exclusive rights granted to the creators of new artistic works. When an author writes an original book the author is granted a copyright on the book. The copyright granted to an author allows the author to prevent other people from making derivative works. A derivative work is something which borrows a significant amount of material from the original. Creating a sequel to a film using characters and other elements from the original would be an example of a derivative work. If someone create a derivative work it is considered copyright infringement and the copyright owner of the original work can sue for copyright infringement.

Many creators are inspired by other copyrighted works. It is necessary to balance a copyright owner’s right to prevent derivative works, with the public’s rights to create their own original works. It would be unfair to allow the first person to draw a tree to claim that all other drawings of trees are derivative of their work. It is not copyright infringement if two creators independently create the same work, and copyright law does allow one creator to borrow a limited amount of another person’s copyrighted work. This permitted borrowing is known as the fair use doctrine. Fair use is a defense to a copyright infringement claim. But the fair use doctrine is limited.

When a court in the United States is presented with fair use defense to copyright infringement, the court considers four factors. Those factors are:

the purpose and character of the use
the nature of the copyrighted work
the amount and substantiality of the portion taken, and
the effect of the use upon the potential market.

A recent case which illustrates the limits of the fair use doctrine is Dr. Seuss Enterprises, L.P. v. ComicMix LLC No. 16CV2779-JLS (BGS) (S.D. Cal. Dec. 7, 2017). In that case, the court found that too much copyright material had been borrowed and the fair use doctrine was not available to the defendant.

The facts of the case are as follows: Seuss Enterprises owns the copyright to a series of popular children’s books. Seuss’s copyrighted books have a very distinctive style of illustration and narration. One of the most popular titles is Oh, the Places You’ll Go! ComicMix created a book called Oh, the Places You’ll Boldly Go! which was a mashup of Star Trek and Seuss style stories. Seuss sued ComicMix claiming that Boldly! was a derivative work of Go! ComicMix responded that their use of material from the Seuss books was protected by the fair use doctrine. The district court held that the fair use doctrine was not available to the defendant. The defendant appealed to the United States Court of Appeals for the Ninth Circuit and the appeals court affirmed the district courts ruling.

In the court’s ruling it reviewed the four factors of the fair use doctrine.

the purpose and character of the use – the court found that Boldy! was transformative enough to favor the defendant.
the nature of the copyrighted work – the court found that this factor slightly favored the plaintiff.
the amount and substantiality of the portion taken – the court reasoned that this factor did no weigh against the defendant.
the effect of the use upon the potential market – the court attributed the most weight to this factor because Seuss does have a robust licensing program for derivative works and even though Seuss had not licensed a mashup style derivative work yet, finding that Boldly! was a fair use would negatively impact the market for Seuss licensed derivative works.

If you are confused, you are not the only one. The Fair Use doctrine can be confusing. The court hearing the case does not have to give each factor of the analysis equal weight, and how a court will rule often cannot be predicted. If you are involved in copyright infringement litigation it is best to have an experienced copyright attorney to advise you.

If you have questions or comments about this blog please email the authors at: admin@uspatentlaw.cn