Unauthorized Dr. Seuss and Star Trek mashup found not to be fair use. SEUSS v. COMICMIX

A copyright is a set of exclusive rights granted to the creator of a new expressive work. Paintings, books, sculptures and movies are some of the types of art that are granted copyright protection. When a creator makes a new work they are granted the exclusive right to reproduce, distribute, display, perform, transmit and make derivative works based on the original. If someone other than the copyright owner of a copyrighted work exercises one of these exclusive rights, that can be considered copyright infringement. A copyright owner can file a lawsuit to stop copyright infringement with an injunction, and get monetary damages for copyright infringement which has occurred.

Copyright law grants a copyright owner some powerful rights, but those rights are not unlimited. Because copyright law protects artistic creations, and many artists draw inspiration from the work of their peers copyright law has some exceptions which will allow one artist to borrow some material from another artist. Fair use is an important exception to the rights granted by copyright law. A fair use is any copying of copyrighted material done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work. Such uses can be done without permission from the copyright owner.

When a court is presented with a fair use defense to copyright infringement, the court will review several factors to determine whether a use is in fact a fair use. The four factors judges consider are: (1) the purpose and character of the use (2) the nature of the copyrighted work (3) the amount and substantiality of the portion taken, and (4) the effect of the use upon the potential market for the copyrighted work. The outcome of a case when a fair use defense is asserted is not easy to predict because the defense is dependent on the facts of the case. Therefore it is useful to review cases to learn how courts have ruled in the past.

DR. SEUSS ENTERPRISES, L.P., v. COMICMIX LLC, 19-55348 (9th Cir. 2020) is an example of a case where a work intended to be a parody was not considered a fair use by the court.

This case centers on the book Oh, the Places You’ll Go! (Go!) by the beloved children’s author Dr. Seuss. An example page of Go! is illustrated above on the left. Plaintiff in this case owns the intellectual property in Dr. Seuss’s works, including the copyrights in his books. Plaintiff publishes reissues of the books, such as anniversary editions. and licenses the creation of new works under the Dr. Seuss brand.

Defendants in this case are the authors of Oh, the Places You’ll Boldly Go! (Boldly). Boldly is a mashup between characters in Star Trek and writing style of Dr. Seuss. A mash-up is something created by combining elements from two or more sources, such as a movie or video having characters or situations from other sources. Go! is the Dr. Seuss work that most closely resembles the story line of Boldly. An example from Boldly is reproduced above on the right. Defendants did not attempt to get a license from Plaintiff to create Boldly. Defendant’s created Boldly with the assumption that they would be immune from copyright liability because they intended to create a parody.

Plaintiff sued Defendant for copyright infringement. The district court granted Defendant summary judgment, holding that Boldly was a fair use of Go! Plaintiff then appealed to the Court of Appeals for the Ninth Circuit.

The Ninth Circuit noted at the start of its opinion that the primary issue on appeal was not whether Boldly infringed
Go!, but whether Boldly! was a fair use of Go!. Because fair use is an affirmative defense the Defendant has the burden of proof that fair use applies. The Ninth Circuit also noted that a parody is a spoof, send-up, caricature, or comment on another work. Mimicking the style of a work with no critical bearing on the substance or style of the original composition does not make a parody. The Ninth Circuit found that Boldly did little more than copy the style of Go! and was neither a parody nor transformative. The Ninth Circuit concluded that all of the statutory factors weighed against fair use and reversed the district court’s grant of summary judgement.

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