Tag Archives: ComicMix

Pixel Scroll 5/11/22 Pixelled In The Scroll By A Chuck Tingle Pixel Scroll Title

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(1) STAR TREK SPOILER WARNING. Let that be said right up front. Anybody that doesn’t want Picard Season 2 spoiled, please skip to the next item.

Okay. Now for the rest of you: “Star Trek Producers Fought Over Which New Shows Get To Bring Back Wesley Crusher” reports TrekMovie.com.

Today Paramount released a “Wesley Crusher’s Return” video feature that was also included in The Ready Room. The video features executive producers Akiva Goldsman and Alex Kurtzman discussing the fact that after the idea of Wesley returning on Picard was brought up, it started a sort of Crusher conflict with at least one other series…

Actor Wil Wheaton commented on Facebook:

I had no idea that the showrunners of the different Star Trek shows were fighting over who could write Wesley into their story.

This just feels like such a huge validation and such a huge win for Wesley, for me, and for all the other kids who were weird, unseen, awkward, or any of the other qualities we all had in common that made him important to us.

And as long as I have your attention: I feel seen and celebrated right now, in a way I never have before. I feel like it’s personal in a way that is brand new, that *belongs* to me, because it is a gift that was given to me.

I don’t know who all the people were, at every step of the way, who made Wesley’s return to Star Trek canon happen, but I am so grateful to all of them for making this happen.

And I’m so grateful to everyone who has celebrated me, and Wesley. It feels really good and it means a lot to me.

Here’s the clip:

(2) LMB MAKES HISTORY. “Bujold interview by Asena Ideus, 23 March 2022” was posted by Lois McMaster Bujold at Goodreads.

Raw version of an email interview I did for a college student for her history thesis paper. I was rather bemused to have my teen fannish enthusiasms viewed as history; my parents would have been quite surprised…

When it comes to Star Trek zines, you are featured in Spockanalia 2 (issued 1968) for your short piece The Free Enterprise. Could you talk more about that, especially since fanzine culture is so different (practically nonexistent) today? What were fanzines like during the ‘60s and ‘70s? The first documented fanzines began in the 1930s, but were they extremely popular among SF fans when Star Trek: TOS was airing or were they still an emerging medium?

LMB: Fanzine culture is thriving today, its content just moved online. It’s just called blogs and websites. It may not know its own history in some cases, true.

One commenter described the internet hitting fanfic as like throwing a gasoline tanker truck onto a campfire, which sounds about right to me….

(3) COMICMIX BACK IN THE SEUSS BUSINESS. Publishers Weekly has the details. “ComicMix Launches Campaign to Publish Public Domain Seuss Stories”. The Kickstarter is here. (People have pledged $4,813 of its $5,000 goal at this writing.)

Less than a year after settling a lawsuit with Dr. Seuss Enterprises, ComicMix is launching a Kickstarter campaign to fund the publication of The Zaks and Other Lost Stories by Theodor Geisel, aka Dr. Seuss, to be released in July. The stories, which are in the public domain and available digitally on the Seussville website, include the titular story The Zaks, and The Sneetches, among others. ComicMix plans to release the titles of the other stories in the compilation as successive crowdfunding goals are met.

Between 1950 and 1956, Geisel published 23 stories in Redbook, including the seven that will be published in this compilation…. The ComicMix edition of the stories was created with high-quality scans from the original Redbook stories, tracked down from collectors of the magazine. Redbook reverted the copyright to these stories to Geisel, but the copyright was not renewed, so the versions that appeared in the magazines are now in public domain. 

ComicMix issued an official comment about the publication, stating, “This book is not associated with, nor approved by, nor even particularly liked by Dr. Seuss Enterprises L.P., a California limited partnership, which owns some of the copyrights of the works of Theodor Seuss Geisel, the author and illustrator who created many works under the pseudonym ‘Dr. Seuss.’ ” Hauman, who preferred to comment about the upcoming book in Seuss-like rhyme, had this to say:

“We found Dr. Seuss stories, once thought to be lost,
that we’re bringing to you at a reasonable cost.
Some tales are familiar, though not quite this way,
but all fine examples of Seuss’s wordplay!
We spruced them all up, and now are good times
to rediscover his artwork and rhymes.
We filled up a book to put on your shelf
So that you can at last read them for yourself!” OY

Dr. Seuss Enterprises declined to comment on the story.

(4) WOKE SF TROLLS. [Item by Mlex.] A thoughtful discussion of the flap of people complaining about “woke” sf by Christopher Reeves, commentator for DailyKos. “Right-wing trolls accusing science fiction of being ‘woke’ are messing with my childhood”.

Sometimes, I fall into a rabbit hole I didn’t even know was going to happen. I was following along with a YouTube thread regarding Stargate SG-1 when it was pointed out a reboot was possible. I, having followed the series, thought, “Cool, cool, I might really enjoy this so tell me more.” I sat down to watch and learned a few things, but within the first three minutes, something interesting came about. According to a video on the subject: “Fans have become concerned following the recent release of The Wheel of Time series, and the upcoming Lord of the Rings: The Rings of Power series. Both of those series have taken significant creative license to change the characters and story to fit what many science fiction and fantasy fans believe is a ‘woke’ or progressive agenda at a cost to the canon of the original stories.“

Wait, what? I’ve read almost all of Tolkien. I’ve watched every Star Trek series. I’ve read some of Ringworld, and in general, I devoured science fiction. What on Earth are these fans so upset about? What am I missing here? I decided last night to do a little bit of looking, and I regret some of the time I sacrificed but it certainly left me with some thoughts. I can always tell things are going wrong when people use terms like “woke” which is just one of those right-wing slurs that they use to replace “compassionate” or “reasonable” it seems….

(5) FREE READ. The “Unofficial Hugo Book Club Blog,” a Best Fanzine Hugo finalist, has made their submission to the Hugo Voter Packet available as a free read at the link. And a very nice job they did, picking the material and creating the design.

(6) JDA SNEAKS BACK ONTO TWITTER. You knew that wouldn’t take long. Jon Del Arroz after being ousted from Twitter on May 6 simply opened another account and immediately resumed tweeting the usual links to his crowdfunding appeals, comics, and books. And misogynistic BS. (The last image below wasn’t posted by JDA, but I bet he wishes he’d thought of it.)

(7) LYNN HARRIS DIES. [Item by Joel Zakem.] Long-time Midwestern and Southern fan Lynn Harris passed away on May 10, 2022. She was 70 years old. Lynn was an artist who was known for running and/or working on many convention art shows, including at the late lamented Rivercon and Kubla Khan. She received the Rebel Award at the 2000 Deep South Con.

(8) PATRICIA MCKILLIP (1948-2022). World Fantasy Award for Lifetime Achievement honoree Patricia A. McKillip died May 6 at the age of 74. Her best-known works included the books in the Riddle-Master trilogy, The Riddle-Master of Hed (1976), Heir of Sea and Fire (1977), and Harpist in the Wind (1979) — the latter her only Hugo finalist, also a finalist for the World Fantasy Award, British Fantasy Award, and winner of a Locus Award.

Four of her books won the Mythopoeic Award for Adult Literature or Adult Fantasy, Something Rich and Strange (1995), Ombria in Shadow (2003, which also won the World Fantasy Award), Solstice Wood (2007), and Kingfisher (2017). Her other World Fantasy Award winning book was The Forgotten Beasts of Eld (1975), which was published in 1974, the year after the appearance of her first published work, The Throme of the Erril of Sherrill (1973), a novella.

McKillip’s Encyclopedia of Science Fiction entry written prior to her death summed up her career: “Over the past two decades, eschewing the use of fantasy backgrounds for inherently mundane epics, McKillip has become perhaps the most impressive author of fantasy story still active.”

(9) MEMORY LANE.

1999 – [By Cat Eldridge.] The considerable joy of doing these anniversaries is finding these weird little shows that I’ve never heard of. So it is with a Disney series called So Weird whichran for sixty-five episodes. So Weird could best be described as a younger version of the X-Files and it far darker than anything which was on Disney when it debuted in 1999. It lasted for just three seasons. 

It was centered around teen Fiona “Fi” Phillips (played by Cara DeLizia) who toured with her rocker mom Molly Phillips (played by Mackenzie Phillips). They kept running into strange and very unworldly things. For the third and final season, she was replaced by Alexz Johnson playing Annie Thelen after the other actress gets the jones to see if she could make in Hollywood. (Well she didn’t.)

The story is that one of the characters, Annie, while visiting an Egyptian museum encounters a cat who once belonged to Egyptian queen that now wants her very much missed  companion back. Yes, both the cat and the princess are either immortal or of the undead. 

The writer of this episode, Eleah Horwitz, had little genre background having written just three Slider episodes and a previous one in this series. He’d later be a production assistant on ALF. 

Now if you went looking to watch So Weird’s “Meow” on Disney + after it’s debuted, the streaming service pulled the second season within days of adding the series but returned it a month later within any reason for having pulled it. The show has never been released on DVD. 

However the first five episodes in the first season of the series were novelized and published by Disney Press as mass-market paperbacks, beginning with Family Reunion by Cathy East Dubowski. (I know the Wiki page says Parke Godwin wrote it but the Amazon illustration of the novel cover shows her name. So unless this is one of his pen names, it is not by him.) You can find the other four that were novelized in the Amazon app by simply doing So Weird + the episode name. No they are not available at the usual suspects.

I didn’t find any critics who reviewed it, hardly surprising given it was on the Disney channel but a lot of folks really liked including John Dougherty at America: The Jesuit Review: “As a kid, my favorite show was about death. Well, not just death: it was also about faith, sacrifice and trying to make sense of life’s ineffable mysteries. Strangest of all, I watched it on the Disney Channel. ‘So Weird’ ran for three seasons from 1999 to 2001. It was Disney’s attempt to create a kid-friendly version of ‘The X-Files,’ tapping into an in-vogue fascination with ghosts, alien encounters and other paranormal phenomena. In practice, it became something more: a meditation on mystery and mortality.” 

I think I’ll leave it there. 

(10) TODAY’S BIRTHDAYS.

[Compiled by Cat Eldridge.]

  • Born May 11, 1930 — Denver Pyle. His first genre performance is in The Flying Saucer way back in 1950 where he was a character named Turner. Escape to Witch Mountain as Uncle Bené is his best known genre role. He’s also showed up on the Fifties Adventures of Superman, Commando Cody: Sky Marshal of the Universe, Men Into  Space, Twilight Zone and his final role was apparently in How Bugs Bunny Won the West as the Narrator. (Died 1997.)
  • Born May 11, 1935 — Doug McClure. He had the doubtful honor of appearing some of the worst Seventies  SF films done (my opinion of course and you’re welcome to challenge that), to wit The Land That Time Forgot, The People That Time Forgot, Warlords of the Deep and even Humanoids From The Deep. Genre wise, he also appeared in one-offs in The Twilight Zone, Out of This World, AirWolf, Alfred Hitchcock Presents, Fantasy Island and Manimal. Some of which were far better. (Died 1995.)
  • Born May 11, 1936 — Gordon  Benson Jr. Publisher and bibliographer who released the first of his many SF bibliographies around the early Eighties. Writers such as Anderson, Lieber and Wellman were covered. Early bibliographies written solo were revised for the Galactic Central Bibliographies for the Avid Reader series, are listed jointly with Phil Stephensen-Payne as later ones. (Died 1996.)
  • Born May 11, 1952 — Shohreh Aghdashloo, 70. Best known genre role is Chrisjen Avasarala on The Expanse series. (I’ve not seen it, but have listened to all of The Expanse series.) She also had a recurring role as Farah Madani on The Punisher. She was also in X-Men: The Last Stand as Dr. Kavita Rao, but her role as The Chairman in The Adjustment Bureau didn’t make it to the final version. She was Commodore Paris in Star Trek Beyond, and she had a recurring role as Nhadra Udaya in FlashForward. 
  • Born May 11, 1976 — Alter S. Reiss, 46. He’s a scientific editor and field archaeologist. He lives in Jerusalem, and has written two novels, Sunset Mantel and Recalled to Service. He’s also written an impressive amount of short fiction in the past ten years, which has appeared in Strange Horizons, F&SF, and elsewhere. 

(11) DISNEY, PAY THE WRITER. LA Times business columnist Michael Hiltzik reports at length about #DisneyMustPay in “Disney’s unpaid artists”.

Given its immense appetite for entertainment content to keep its movie and television pipelines filled, you would think that Walt Disney Co. would do its best to treat its creative talent fairly.

You would be wrong.

For years, Disney has been cheating the writers and artists of tie-in products — novelizations and graphic novels based on some of its most important franchises — of the royalties they’re due for their works. That’s the conclusion of a task force formed by the Science Fiction and Fantasy Writers of America and joined by the Writers Guild East and West and several other creator advocacy organizations.

…[Mary Robinette Kowal] and others say that Disney has refused to take a proactive approach to identifying the creative artists who are owed money and paying what it owes. The company has ignored pleas by the task force and individual agents to post a portal on its website and a FAQ page to inform writers how to file claims and to whom their claims should be addressed.

The company has also refused to accept names and contact information from the SFWA for writers and artists who have reached out to the organization. “Disney gets away with this by using the exhaustion tactic,” Kowal told me. “They wear people down.”

The tactic works, she says: “Some authors have just given up because Disney puts up roadblocks and makes people jump through hurdles.”

The company, according to Kowal, has told some authors who stopped receiving royalties or royalty statements that this happened because it didn’t have their addresses. “They tell that to authors they’ve sent author copies of books to,” Kowal says, “so clearly they have their mailing addresses.”…

(12) FLASHBACK. [Item by SF Concatenation’s Jonathan Cowie.] BECCON’s 40th anniversary reunion has been held – a year late due to CoVID.

BECCON was a series of biennial conventions in the 1980s: 1981; 1983; 1985; and the 1987 UK Eastercon. BECCON standing for the Basildon Essex Centre CONvention with ‘Centre’ becoming ‘Crest’ when the hotel changed its name. The 40th anniversary reunion would have taken place last year but was postponed due to CoVID. The gathering took place in Arlesey, Bedfordshire, where previous reunions had taken place so as to give one of BECCON’s film projectionists, Graham Connor, a fan experience (Graham had severe mobility issues several years prior to his passing and could not get to conventions). BECCON may be a thing of the past but those involved with it, for the most part, are still very active in fandom and BECCON did spawn two spin-out ventures still going today: Beccon Publications (a number of whose books have been short-listed for Hugos) and the SF² Concatenation (the winner of a number of Eurocon Awards).

Those present at the reunion were from far left and clockwise: John Stewart,Roger Robinson (Beccon Publications), Jenny Steele (sadly obscured), Brian Ameringen (Porcupine Books), Peter Tyers, Arthur Cruttenden, Caroline Mullan (2023 Eastercon committee), Anthony Heathcote and Jonathan Cowie (SF² Concatenation),

The BECCON ’87 programme book front cover. This was back in the days (prior to the 2010s) when Eastercons had a souvenir programme book in addition to the schedule timetable booklet.  It is particularly notable as being the first British Eastercon programme book to have a full colour cover. The cover art was by one of the convention’s GoHs, Keith Roberts.

(13) DOCTORAL THESIS. At Nerds of a Feather, Arturo Serrano concludes “’Doctor Strange 2′ is visually delightful and narratively bland”.

Despite the refreshing shift in visual style brought into the MCU by director Sam Raimi, Doctor Strange in the Multiverse of Madness is far from the milestone it was expected to be. The ongoing saga of the Avengers was supposed to expand into a wealth of possibilities with the addition of alternate realities, character variants, and reclaimed franchises just acquired by Disney from Fox. But what this movie delivers is smaller than the sum of its parts….

(14) LOST IN SPACE. Serrano also finds another franchise lacking: “‘Star Trek: Picard’ season 2 is aimless and inconsistent”

Season 2 of Star Trek: Picard bites more than it can chew. In the span of ten episodes, it tries to explore xenophobia, eugenicism, the weight of self-blame, repressed trauma, the tragedy of finitude, the tension between open and closed societies, the human yearning for intimate connection, the fear of loneliness, the responsibilities that come with parenthood, immigration policy, the purpose of life in old age, the narcissism inherent to the search for a legacy, authoritarianism, temporal paradoxes, suicide, and the uncertainty about the turbulent direction of humankind in the 2020s. Unfortunately, the show doesn’t manage to say anything insightful about any one of its myriad themes….

(15) SAGE AGAINST THE MACHINE. Inverse presents “The 8 best movie time machines of all time, ranked by scientists”. You’d be surprised what kind things scientists have to say about the TARDIS.

These time-defying contraptions fill us with wonder because, while we’re innately curious with a desire to explore, we also love fawning over shiny screens and elaborate gadgetry. Humans are hardwired to push any button we see. No matter the ramifications….

6. DOCTOR WHO’S TARDIS

WHAT IT DOES: It takes you to another realm that enables you to move through time (the time vortex).

Everyone we spoke to mentioned this iconic machine, which looks like an old, blue, British police box.

“What other time machine gets a decorating job every few years, keeps updating its canon, and has an Olympic-sized swimming pool? Or even a personality?” Šiljak says. “The way the TARDIS operates and interacts with the Doctor is also a great suspension of disbelief catalyst that allows me to enjoy a plot that has holes.”

Its properties are bizarre, but its time-travel abilities are appealing to real scientists.

“The core of the TARDIS is a tesseract, which is a four-dimensional cube,” says Dr. Erin Macdonald, an astrophysicist, writer, producer, and Star Trek science advisor. “The reason this is great scientifically is our universe is four-dimensional, but we can only control three of those dimensions (space, not time). It logically makes sense that if we had an object that had four dimensions, that extra dimension could be time and could have more control than just space.”

Jan J. Eldridge, a theoretical astrophysicist and associate professor in the physics department at the University of Auckland, New Zealand, adds that the TARDIS’ ability to travel freely through both space and time also helps explain another of its key features: the interior doesn’t match the exterior.

“Any technology that allows you to bend space-time to travel through time would also leave you with the ability to stretch and square space-time itself,” she says.

(16) JEOPARDY! A whole category about sci-fi trilogies on tonight’s Jeopardy!, and Andrew Porter was tuned in. Unfortunately, the contestants weren’t!

Category: Sci-Fi Trilogies

Answer: This Alphanumeric book series follows up on the “Judgment Day” film, telling more of the story of Skynet & John Connor.

No one could ask, What is T-2?

Answer: The first in a Cixin Liu trilogy, this numerical novel is partially set during China’s Cultural Revolution.

No one could ask, What is ‘The 3-Body Problem”?

(17) SPACE EXTRICATION. “I hate that MS Word considers this an error,” says John King Tarpinian. “Double Space” at Nerdy Tees.

(18) CEREAL KILLER. Today’s Heather Martin says, “I tried Tropicana Crunch, the new cereal designed to be eaten with orange juice”.

Tropicana Crunch Honey Almond Cereal is a limited-edition offering for the “cereal curious” released to honor National Orange Juice Day on May 4. It’s the first cereal made specifically for pairing with OJ, and the company claims it’s “crispy and ready to get citrusy.” It comes thoughtfully packaged with one of Tropicana’s famous red-striped straws, so you can finish the cereal … juice … with class instead of lapping it from the bowl like a dehydrated Labrador….

It’s hard to swallow, I’ll grant you, but hear me out: It might be a sound concept. I often talk to clients who either don’t like milk or are allergic to it, and just like the box says, many times they tell me that they have tried orange juice on cereal.…

(19) VIDEO OF THE DAY. [Item by Martin Morse Wooster.] In “Honest Trailers:  The Batman,” the Screen Junkies say Robert Pattinson is the first Gen-Z Batman, because the “villains are influencers, he’s worse off than his parents, and his home town will very soon be under water.”  Also, the Riddler “talks a big game abou cleaning up the city while dressed like a garbage bag.”

[Thanks to JJ, John King Tarpinian, Cora Buhlert, Cat Rambo, Joel Zakem, Michael J. Walsh, Rich Lynch, SF Concatenation’s Jonathan Cowie, Adam Rakunas, Chris Barkley, Andrew Porter, Michael Toman, Cat Eldridge, Mike Kennedy, and Martin Morse Wooster for some of these stories. Title credit belongs to File 770 contributing editor of the day Jon Meltzer.]

Oh, The Place We Boldly Stop.

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[ComicMix VP Glenn Hauman today provided closure for those who have followed the Dr. Seuss Enterprises vs. ComicMix et al. case since it began in 2016.  His article is reblogged here from ComicMix with his permission.]

By Glenn Hauman: The Dr. Seuss Enterprises lawsuit against us is finally over.

In August 2016, we put up a Kickstarter for Oh, The Places You’ll Boldly Go!, a mash-up of Star Trek and Dr. Seuss to be written by David Gerrold, drawn by Ty Templeton, edited by Glenn Hauman, and published by ComicMix LLC later that year. DSE sent us a cease and desist letter on September 27, 2016. (Yes, the legal wrangling lasted longer than the Enterprise’s original five-year mission.) DSE filed a DMCA motion to take down the Kickstarter campaign on October 7, and filed suit against us on November 10, 2016, alleging copyright infringement, trademark infringement, and unfair competition.

We put up a good fight. We defeated the trademark infringement and unfair competition claims, and that win was affirmed on appeal. We also won summary judgment on the claim of copyright infringement, though that was reversed on appeal. The court set a pretrial schedule in September 2021 and we were well positioned to have a jury resolve whether or not you could see this book.

And yet, today we’re announcing that we and DSE submitted a proposed consent judgment for the suit, and that the Honorable Judge Janis L. Sammartino granted it on Friday, October 8, 2021 and closed the case.

Why? The simple truth is— we ran out of time.

This past year, Ty was diagnosed with Stage 3 colorectal cancer. This has required him to undergo months of chemotherapy and radiation treatment, just to prepare him for the needed surgery—which will then require weeks of recuperation until he recovers enough to go through six MORE months of chemo and radiation, and then MORE surgery after that. This has affected his ability to work, to draw, and to do any of the things an immunocompromised person shouldn’t do, especially in the middle of a global pandemic.

And the trial schedule would have been smack in the middle of all of that. After five years of sometimes ridiculous litigation and with the pre-trial deadlines looming, as Ty’s collaborators and friends, we refused to put him through any additional stress that could in any way impinge on his health and recovery. To the credit of the people at DSE, they didn’t want to put Ty through that either. So we joined in a motion to end the suit the day before Ty’s surgery, in order to alleviate the less serious pain in his ass so he can deal with the far more lethal and literal pain in his ass.

In the consent judgment, DSE concedes some of our defenses and we concede some of their claims. Unfortunately, the terms stipulate that even though the book is complete, we won’t be able to present Oh, The Places You’ll Boldly Go! to you for another forty years, when the Dr. Seuss copyrights are set to expire and his books enter the public domain. (We can start taking preorders in January 2062, so set your calendar reminders now.)

We still passionately believe in and stand for creators’ rights, including fair use, and we still maintain that Boldly is a fair use that could not have harmed DSE in any way, now, five years ago, or in forty years. Unfortunately, the Ninth Circuit Court of Appeals’s view of fair use makes it very difficult to overcome a well-heeled copyright holding corporation if it wants to stand in the way (anyone who thinks “corporations are people” has never seen a corporation in a cancer ward) and they decided that the book was over the line. We’re looking forward to the day when you can finally see the full book for yourself and make your own determination about it—until then, it’s like writing a book report by just looking at the cover, never seeing what’s inside.

It has been a long five-year mission filled with many absurdities. At one point, Universal Pictures asked us to help promote “The Grinch” DVD release, so DSE could make more money to bash over our heads. At another point, DSE paid an “expert witness” who got an artist to redraw our book in the most dreadful way imaginable, and then did a trademark survey asking shopping mall customers to compare Ty’s artful mix of Seuss and Trek with that hack job. We’re still wondering how our book referencing a single illustration from How The Grinch Stole Christmas could have taken “the heart of the work,” as the Ninth Circuit Court of Appeals thought, when the illustration in question shows neither the Grinch, Christmas, or anything being stolen. And less than thirty-six hours after the Ninth Circuit reversed the fair use ruling, we got to watch Saturday Night Live air a sketch about the Grinch in a Whoville three-way, with nary a peep from DSE.

We’re also grimly amused about how we had to fight a fair use case while DSE’s own publisher, Penguin Random House, put out their own unauthorized parody, Oh, The Meetings You’ll Go To! (Although there is some question as to whether or not Meetings is officially sanctioned by Dr. Seuss Enterprises, as the copyright page of Meetings makes no mention of a DSE license, yet this since deleted tweet from Eric Nelson on August 4th, 2020 says otherwise…)

But when we were sued two days after Election Day 2016, we knew that letting anyone with lots of money, name recognition, and power have the ability to shut down even the gentlest of parodies and mildest of commentaries about them unchallenged was an extremely bad precedent to set for the future—if for no other reason that we make up for one another’s biases by being able to criticize each other, whether we are children’s book authors or circuit court judges.

We can take satisfaction in many of the victories and precedents this case has set, including:

  • The Ninth Circuit made it explicit that mash-ups can be fair use. (Just not, apparently, ours.)
  • The District Court’s summary judgment ruling held that there are no exclusive trademark rights in an artistic style, or a distinctive font or typeface.
  • In fact, the trademark infringement and unfair competition claims wound up a total rout. They were dismissed based on nominative fair use in 2017. DSE renewed them, and we won judgment on the pleadings over its claims about the book’s title based on the Rogers/First Amendment test in 2018. We won the “that’s not even a thing” issue over the Seussian art style and typeface in 2019. And in 2020 the Ninth Circuit affirmed everything under Rogers and the First Amendment.

While we’re not entirely pleased with the case’s outcome, we remember the words of historian Richard Hofstadter, who observed that sometimes people must “endure error in the interest of social peace.” If we were ultimately unable to persuade the Ninth Circuit to reduce the amount of error involved in determining fair use for creators, we’ve done what we can to forge a path for future fair use activists.

There are many people we’d like to thank for helping us go boldly, as we believe that, as our book says, no one goes forward alone. First and foremost: our lead attorney Dan Booth of Dan Booth Law, who fought the good fight with the strength of a hundred lawyers against a firm with four thousand lawyers. We also give thanks to Michael Licari, now in-house counsel at Veteran Benefits Guide, Dan Halimi, now at Halimi Law Firm, T.C. Johnston at Internet Law, Joanna Ardalan of OneLLP, who appealed our case to the Supreme Court, and Ken White of Brown White & Osborn LLP, who sent up the Popehat signal that brought us much needed assistance in the first place. And we thank Dr. Joshua Gans, our expert witness, who generously donated his time and testimony and worked under ridiculous constraints.

We’d also like to thank the people who filed amici briefs taking our side:

Francesca Coppa, Stacey L. Dogan, Deborah R. Gerhardt, Leah Chan Grinvald, Michael Grynberg, Mark A. Lemley, Jessica Litman, Lydia Loren, David Mack, William McGeveran, Mark P. McKenna, Lisa P. Ramsey, Pamela Samuelson, Jessica Silbey, Rebecca Tushnet, Magdalene Visaggio, the Electronic Frontier Foundation, the Organization For Transformative Works, Public Knowledge, and their counsel Chris Bavitz, Mason Kortz, Phillip R. Malone, Meredith Rose, Eric Stallman, and Kit Walsh.

And we’d like to also thank Mike Gold, Martha Thomases, Brandy Hauman, Keiren Smith, Pam Hauman, Shann Dornhecker, Mark Treitel, Joshua Masur, Katherine Trendacosta, Heidi Tandy, Meredith Rose, Brian Jay Jones, Mike Godwin, Margot Atwell, Camilla Zhang, Oriana Leckert, Allison Adler, Michael C. Donaldson, Film Independent, the International Documentary Association, and Steve Saffel.

We’d very much like to thank United States District Judge Janis L. Sammartino, who presided over our case with patience, fairness, wisdom, and thoughtfulness, and all of the staff that supported her.

And finally, we’d like to thank all of the Kickstarter backers who wanted to make this book a reality, all the supporters who helped cover (the start of) our legal expenses, and all of the journalists and scholars who followed and reported on our case. We are grateful for your generosity and faith, and are very disappointed that we can’t show you what you’ve been waiting years to see. At least not yet.

For those interested, the case is Dr. Seuss Enterprises LP v. ComicMix LLC et al.,; case number 3:16-cv-02779 in the United States District Court for the Southern District of California, and case number 19-55348, in the United States Court of Appeals for the Ninth Circuit.

P.S.: There’s two more last minute “thank yous.” The proposed consent judgment was submitted this past Tuesday, October 5. On Wednesday, October 6, Ty had his surgery, which went well. And on Thursday, October 7, two guys joined David and Glenn in sending get-well notes to Ty—a Mr. Shatner and a Mr. Takei.

Thanks, captains.

Seuss vs. ComicMix Trek Mashup Litigation Settled

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In a joint motion filed by the parties on October 5, ComicMix has agreed to a permanent injunction on further distribution of Oh, the Places You’ll Boldly Go! while Dr. Seuss Enterprises will abandon its efforts to collect damages.

As The Hollywood Reporter’s Eriq Gardner explains in his article “’Star Trek’/Dr. Seuss Mashup Legal Dispute Ends After Five-Year Journey”, the parties settled because after the appeals court gave Dr. Seuss Enterprises a win and remanded the case, the district court judge denied summary judgment on the issue of whether Seuss had shown copyright infringement. That meant the judge would not make a determination on the existing record and a trial would be required to develop the remaining issue – therefore ComicMix still had a small chance. Dr. Seuss Enterprises decided not to find out how small.

Federal District Court Judge Janis L. Sammartino’s decision denying summary judgement filed August 9 can be read here.

The litigation began in November 2016 when, during a Kickstarter campaign to fund Oh, The Places You’ll Boldly Go! featuring the writing of David Gerrold, the art of Ty Templeton, and the editorial skills of ComicMix’s Glenn Hauman, Dr. Seuss Enterprises (DSE) filed suit for damages claiming the project infringed their copyright and trademark on Dr. Seuss’ Oh the Places You’ll Go! 

[Thanks to Chris Barkley for the story.]

Pixel Scroll 12/23/20 It Was The Alfred Bester Of Times, It Was The Bertie Wooster Of Times

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Note: A bit light today because I’m off helping celebrate my brother’s birthday.

(1) OUT OF COURT. Mike Dunford of Questionable Authority makes some interesting comments on the decision against ComicMix (see “Dr. Seuss Enterprises Wins Appeal to Ninth Circuit; Seuss-Trek Mashup Violates Copyright”) and promises more on his next QuestAuthority at Twitch. Twitter thread starts here.

https://twitter.com/questauthority/status/1341806250036785154

(2) A SCAM, BUT WHY? At Writer Beware, Victoria Strauss warns that a “Spooky Phishing Scam Targets Traditionally-Published Writers”.

…The phisher, or phishers, employ clever tactics like transposing letters in official-looking email addresses (like “penguinrandornhouse.com” instead of “penguinrandomhouse.com“) and masking the addresses so they only show when the recipient hits “Reply”. They know how publishing works and appear to have access to inside information, utilizing not just public sources like acquisition announcements in trade publications, but details that are harder to uncover: writers’ email addresses, their relationships with agents and editors, delivery and deadline dates, even details of the manuscripts themselves. 

And they are ramping up their operations. According to the Times, the scam began appearing “at least” three years ago, but in the past year “the volume of these emails has exploded in the United States.”

So what’s the endgame? Publishing people are stumped. Manuscripts by high-profile authors have been targeted, but also less obviously commercial works: debut novels by unknowns, short story collections, experimental fiction. The manuscripts don’t wind up on the black market, as far as anyone can tell, and don’t seem to be published online. There have been no ransom demands or other attempts at monetization. 

[From a New York Times article:] “One of the leading theories in the publishing world, which is rife with speculation over the thefts, is that they are the work of someone in the literary scouting community. Scouts arrange for the sale of book rights to international publishers as well as to film and television producers, and what their clients pay for is early access to information — so an unedited manuscript, for example, would have value to them.”

(3) A CAT WITH A DESK. Timothy the Talking Cat makes “Tim’s Last Minute Gift Suggestions” at Camestros Felapton.

… You worthless and ungrateful humans have probably left all your shopping to the last minute. Well let me help out. Here are some quick and easy gifts you can get together even on a tight budget.

…Surprises. Everybody loves surprises! Go out into the garden. Find a dead bird. Sniff it and maybe wack it about a bit with your paws. Bring it home and drop it somewhere surprising….

(4) LUKER OBIT. A phantom’s beloved and a garden ghost:“Rebecca Luker, a Broadway Star for Three Decades, Dies at 59” reports the New York Times.

Rebecca Luker, the actress and singer who in a lauded three-decade career on the New York stage embodied the essence of the Broadway musical ingénue in hit revivals of “Show Boat,” “The Sound of Music” and “The Music Man,” died on Wednesday in a hospital in Manhattan. She was 59. … she had amyotrophic lateral sclerosis, commonly known as A.L.S. or Lou Gehrig’s disease.

…Just five years after college, she was on the Broadway stage, assuming the lead female role in “The Phantom of the Opera”— Christine, the chorus girl who is the object of the phantom’s affections.

“Phantom” was her Broadway debut; she began as the understudy to the original star, Sarah Brightman; became an alternate; and took over as Christine in 1989. She remained with the show until 1991.

Ms. Luker moved on immediately to another Broadway show: She played a ghost, the little orphan girl’s dead Aunt Lily, in “The Secret Garden.” 

(5) MEDIA BIRTHDAY.

  • December 23, 1963 — On this night in 1963, Twilight Zone’s “The Night of the Meek” first aired. This was a Christmas-themed story with Art Carney as a Santa Claus fired on Christmas Eve who finds a mysterious bag that gives an apparently unlimited stream of gifts. The script which was written by Rod Serling would be used over in the Eighties version of this series and on the radio program as well. Serling ended the original broadcast with the words, “And a Merry Christmas, to each and all”, but that phrase was deleted in the Eighties and would not be back until Netflix started streaming the series.

(6) TODAY’S BIRTHDAYS.

[Compiled by Cat Eldridge and John Hertz.]

  • Born December 23, 1896 — Máiréad Ní Ghráda. She’s the author of Manannán, a 1940 novel which is regarded as the first such science fiction work in Irish. Several years previously, she translated Peter Pan into Irish, Tír na Deo, the first time it had been so done. (Died 1971.) (CE) 
  • Born December 23, 1927 – Chuch Harris.  (“Chuch” from Chuck Harris.)  Englander who became an adjunct (at least) of Irish Fandom with a letter to Walt Willis of Slant beginning “Dear Mr. Ellis”.  CH submitted a story about a family of werewolves beginning “The family were changing for dinner”.  Persuaded to visit Vin¢ Clarke and Ken Bulmer at their flat the Epicentre (mistaking this for the center, or centre, of an earthquake, has a long history) he helped generate Sixth Fandom, was shot with a water-pistol by James White, wrote for Hyphen, and formed Tentacles Across the Sea with Dean Grennell.  Much later Spike published the Chuck Harris Appreciation Magazine, which only a Johnson fan like me would call the Great Cham, hello Spike.  (Died 1999) [JH]
  • Born December 23, 1928 – George Heap.  Long-time secretary of the Philadelphia SF Society, filker, Tolkien fan before the paperback Lord of the Rings arrived, he moved to Rochester, joined The Cult, and died at the horrid age of 41 just before Noreascon I the 29th Worldcon.  You can see four 1960 issues of his SF Viewsletter here.  (Died 1971) [JH]
  • Born December 23, 1929 — Peggy Fortnum. She’s an English illustrator beloved for illustrating Michael Bond‘s Paddington Bear series. She first illustrated him in A Bear Called Paddington. One of Fortnum’s Paddington illustrations is part of a series of stamps that was issued by the Royal Mail in 2006 celebrating animals from children’s literature. Somehow it seems appropriate on Christmas for me to share that stamp here. (Died 2016.) (CE)
  • Born December 23, 1945 — Raymond E. Feist, 75. Best known for the Riftwar series. The only novel I’ve read by him is was Faerie Tale, a dark fantasy set in the state of New York, which is one damn scary work. His only Award to date is a HOMer Award for Servant of the Empire which he co-wrote with Janny Wurts. (CE)
  • Born December 23, 1978 — Estella Warren, 42. Deena on the Planet of The Apes. She also shows up in Ghost Whisper, the Beauty and the Beast film as Belle the Beauty, Taphephobia, Feel the Dead and Age of the Living Dead. (CE) 
  • Born December 23, 1954 – Susan Grant, age 66.  U.S. Air Force veteran, then commercial pilot; 18,000 hours flight time.  RITA Award – for Contact, an SF romance; there’s cross-genre action for you.  A score of novels, a few shorter stories, several Booklist and Library Journal Books of the Year.  [JH]
  • Born December 23, 1960 – Miyabe Miyuki, age 60.  (Personal name last, Japanese style.)  Six novels, ten shorter stories so far available in English.  Yamamoto Shûgorô Prize, Naoki Prize, two Yoshikawa Eiji Prizes, Nihon SF Taishô Award.  Mystery Writers of Japan Award.  Batchelder Award for the English translation of her Brave Story.  Film, television, manga, video games.  All She Was Worth (English title) called a watershed in the history of women’s detective fiction.  [JH]
  • Born December 23, 1970 – Natalie Damschroder, age 50.  A dozen novels for us, thirty all told, many shorter stories.  Loves the New England Patriots more than anything except her family, writing, reading, and popcorn.  I omit what she thinks her teen fiction kicks.  [JH]
  • Born December 23, 1984 — Alison Sudol, 36. She’s known for her role as Queenie Goldstein on Fantastic Beasts and Where to Find Them and Fantastic Beasts: The Crimes of Grindelwald. I do so like those titles. She’s also has a recurring role as Kaya in Transparent, a series which is at least genre adjacent for its genre content and certainly SJW in content. (CE)
  • Born December 23, 1985 – Marta Dahlig, age 35.  Digital artist, mostly.  Here is the Jun 05 Revelation.  Here is The Shifter (German edition, translated as The Healer).  Here is Sloth.  In a different vein, here is Mimi and the Brave Magic.  [JH]
  • Born December 23, 1986 — Noël Wells, 34. Voice actor on Star Trek: Below Decks where she voices the green-colored Ensign D’Vana Tendi. I so wanted to love this series but was actually repelled by it. I said a year ago that “It should a rather fun time.” Well I was wrong.  So what do y’all think of it? (CE) 

(7) COMICS SECTION.

  • “Shoe” might have this same reaction to some of the book lists I run.
  • “Get Fuzzy” doesn’t treat a famous mathematician with the gravity his deserves.

(8) HIGH CALIBER CANON. Sff gets a fillip of genre recognition in The Penguin Book of the Modern American Short Story edited by John Freeman, to be released May 4, 2021.

…Beginning in 1970, it culls together a half century of powerful American short stories from all genres, including–for the first time in a literary anthology–science fiction, horror, and fantasy, placing writers such as Usula Le Guin, Ken Liu and Stephen King next to some of the often-taught geniuses of the form–Grace Paley, Toni Cade Bambara, Sandra Cisneros, and Denis Johnson. Culling widely, Freeman, the former editor of Granta and now of his own literary annual, brings forward some astonishing work to be regarded in a new light. Often overlooked tales by Dorothy Allison, Charles Johnson, and Toni Morrison will recast the shape and texture of today’s enlarging atmosphere of literary dialogue.

(9) BONFIRE OF THE VANITIES. Jason Scott retells a story he says happened in the 1990s. Thread starts here.

(10) REGIME CHANGE. The Washington Posts’s Alexandra Petri finds another leader who has their own reality:“I, the White Witch, am disgusted by anyone who would try to make it always winter and never Christmas” .

Here in Narnia, it is so, so important that we have seasons, as I, the White Witch, have always been the absolute first to say. Lots of seasons, one leading to the next, leading to Christmas. I have always cared the most about seasons, and the second most about being absolutely sure that there will be Christmas. “More Seasons for Narnia!” was actually my slogan, although it was on a bumper sticker covered in ice crystals and hidden on my sledge under a big heap of Turkish delight. But I knew that it was there….

[Thanks to Chris Rose, John King Tarpinian, Daniel Dern, JJ, Martin Morse Wooster, Michael Toman, Cat Eldridge, John Hertz, Andrew Porter, and Mike Kennedy for some of these stories. Title credit goes to File 770 contributing editor of the day Daniel Dern.]

Dr. Seuss Enterprises Wins Appeal to Ninth Circuit; Seuss-Trek Mashup Violates Copyright

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The Ninth Circuit Court of Appeals has ruled in favor of Dr. Seuss Enterprises’ suit to stop ComicMix’s Oh, The Places You’ll Boldly Go! project, a crowdfunded book featuring the writing of David Gerrold and the art of Ty Templeton.

The Ninth Circuit decision says —

The creators thought their Star Trek primer would be “pretty well protected by parody,” but acknowledged that “people in black robes” may disagree. Indeed, we do.

Dr. Seuss Enterprises (DSE) claimed Boldly infringed their copyright and trademark for Dr. Seuss’ Oh the Places You’ll Go! The Ninth Circuit panel concluded that Boldly did not make fair use of Seuss’ classic Oh, the Places You’ll Go! therefore ComicMix and the creators infringed DSE’s copyright, reversing the district court’s 2019 summary judgment in the defendants’ favor. However, the Ninth Circuit did affirm the lower court’s decision that the defendants’ book does not violate DSE’s trademarks.

The panel held that defendants’ use of Dr. Seuss’s copyrighted works, including the book Oh, the Places You’ll Go! (“Go!”), was not fair use. There is a four-factor legal test of fair use, and the panel said all four weighed against ComicMix. The case summary explains —

The panel concluded that all of the statutory factors weighed against fair use, and no countervailing copyright principles counseled otherwise. The purpose and character of Oh, the Places You’ll Boldly Go! (“Boldly”) weighed against fair use because defendants’ use was commercial and was not a parody or otherwise transformative. The creative nature of Go! and the amount and substantiality of the use of Go! also weighed against fair use, as did the potential market for or value of Seuss. The panel held that because fair use is an affirmative defense, the burden is on defendants with respect to market harm.

The Ninth Circuit observed that Boldly’s art was not simply comparable to Seuss’ style, it emulated specific pages in Seuss’ Go! The decision analyzes several instances in side-by-side comparisons.

The Seuss original is on the left, the Boldly page is on the right.

…ComicMix’s claim that it “judiciously incorporated just enough of the original to be identifiable” as Seussian or that its “modest” taking merely “alludes” to particular Seuss illustrations is flatly contradicted by looking at the books. During his deposition, Boldly illustrator Templeton detailed the fact that he “stud[ied] the page [to] get a sense of what the layout was,” and then copied “the layout so that things are in the same place they’re supposed to be.” The result was, as Templeton admitted, that the illustrations in Boldly were “compositionally similar” to the corresponding ones in Go!. In addition to the overall visual composition, Templeton testified that he also copied the illustrations down to the last detail, even “meticulously try[ing] to reproduce as much of the line work as [he could].”

The case will now be returned to the district court for trial on copyright infringement, which the defendants will face without their fair use defense.

[Thanks to Andrew Porter for the story.]

Seuss-Star Trek Mashup Argued in the Ninth Circuit

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On Monday a panel of Ninth Circuit Court of Appeals judges heard oral arguments in Dr. Seuss Enterprises’ suit to stop ComicMix’s Oh, The Places You’ll Boldly Go! project.

Dr. Seuss Enterprises (DSE) claims the crowdfunded book, featuring the writing of David Gerrold and the art of Ty Templeton, infringes their copyright and trademark for Dr. Seuss’ Oh the Places You’ll Go! Previous District Court rulings had disposed of DSE’s trademark violation claims and copyright infringement claims, the latter decision now under appeal to the Ninth Circuit.

Courthouse News, in “Seuss-Star Trek Copyright Battleship Makes Landing at Ninth Circuit”, reports attorney Stanley Panikowski, representing Dr. Seuss Enterprises, said the Trek mashup would damage the demand for the Seuss original by competing with it in the graduation gift market. The mashup’s effect upon the potential market for or value of the copyrighted work is one of the four factors to be considered by the courts in evaluating fair use of copyrighted maerial.

Panikowski said via videoconference Monday… “‘Boldly’ has the same purpose, the same target audience, the same intended sales channels, and even the same substantive message as ‘Go.’ ‘Boldly is just a Star Trek-flavored clone of ‘Go,’” he added.

The Seuss classic reportedly “shoots to The New York Times’ bestsellers list” every May, purchased as a gift for graduates embarking on their careers.

In The Hollywood Reporter, “Appeals Court Reviews ‘Star Trek’/Dr. Seuss Mashup”, Eriq Gardner further observed:

If there’s reason to believe the Ninth Circuit is primed to reverse the decision and revive this mashup case, it comes from a point pushed by appellate judge Milan Smith. Several times during oral arguments, he stressed that the burden of showing a fair use is on the defendant. Meaning, it is ComicMix’s burden to show there isn’t market damage from Boldly rather than DSE’s burden to show there is the potential for market damage. Booth asserted the burden should be on the plaintiff, but in response to a question from Smith, the attorney admitted there’s no precedent of burden shifting when the judge rules the work is transformative. 

Courthouse News reported another judge’s questions indicated skepticism that the mashup satisfies the copyright law’s requirements for protection as a transformative work.

When U.S. Circuit Judge M. Margaret McKeown, a Bill Clinton appointee, noted there is no bright-line rule for the court to determine if a work complies with the transformative use provision allowable by the Copyright Act, Panikowski said the work was not transformative because it did not criticize or comment on the substance and style of the Dr. Seuss original.

ComicMix attorney Dan Booth disagreed.

“‘Oh, the Places You’ll Boldly Go’ is a creative expressive work that poses no cognizable harm to Dr. Seuss Enterprises,” Booth said.

“Fair use matters to artists and the public because it gives them breathing room to create,” he added.

But McKeown countered that argument, saying: “I’m having a hard time understanding your argument that this is a parody.”

Booth said because “Oh, the Places You’ll Go” is a book heavy on illustrations, rather than text, the parody of the Star Trek mash-up “is much more implicit through the illustration than the text.”

He also argued there is a “different undercurrent” of “Oh, the Places You’ll Boldly Go,” in which its parody is in “constantly pointing out the individualistic and narcissistic character of ‘Oh, the Places You’ll Go.’”

“It’s a universalist theme as opposed to aspiring for the goals of one individual. Star Trek and ‘Boldly’ take on a different approach and shoot for a different ideal, an ideal of universalism, of group support, of communion rather than individuality,” Booth added.

McKeown appeared unconvinced, calling Booth’s argument an “after-the-fact justification” as to why ComicMix chose to parody Dr. Seuss.

She also poked holes in Sammartino’s finding the Star Trek parody was transformative under the Copyright Act.

“The district court’s opinion on fair use is if you take an existing expression and intersperse it with some new expression that all of a sudden you have a transformative work,” McKeown said.

“It would seem to me to sink the whole notion of copyright protection and almost everything would be fair use,” she added.

According to The Hollywood Reporter’s Eriq Gardner, this case “marks the first time that an appeals court has grappled with the genre of mashups.”

An attempt to place mashups on par with parody in terms of copyright law didn’t sit well with Ninth Circuit Judge M. Margaret McKeown.

“The district court seemed to take the position that if you take existing expression and then you interspersed it with new expression, you have a transformative work,” she commented. “That is a definition of transformative use that I haven’t seen before. It would seem to sting the notion of copyright protection, and almost everything would be a fair use.”

[Thanks to Michael J. Walsh for the story.]

Court Rules Star Trek/Seuss Mashup Is Copyright Fair Use

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ComicMix was the winner today when a Federal judge decided the remaining copyright issues in Dr. Seuss Enterprises’ suit to stop the Oh, The Places You’ll Boldly Go! project.

Dr. Seuss Enterprises (DSE) had claimed the crowdfunded book, featuring the writing of David Gerrold and the art of Ty Templeton, infringed their copyright and trademark for Dr. Seuss’ Oh the Places You’ll Go! A court ruling in May 2018 disposed of DSE’s trademark claims, but the copyright claims remained to be litigated.

In granting ComicMix’s motion for summary judgment U.S. District Court Judge Janis Sammartino explained: “Summary judgment is appropriate where the Court is satisfied that there is ‘no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’”  

ComicMix argued there was no copyright infringement because Boldly is fair use, and under applicable caselaw “the doctrine of ‘fair use’ shields from infringement particular uses of a copyrighted work.” 

Judge Sammartino wrote that Congress set forth four non-exclusive factors for use in evaluating whether a particular use of a copyrighted work is fair: 

(1) The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

The Hollywood Reporter’s Eriq Gardner explained the judge’s analysis of this factor in his story:

In an attempt to foreclose a successful fair use defense, Dr. Seuss Enterprises pointed to the Federal Circuit’s 2018 decision in Oracle America, Inc. v. Google. That case deals with copyrighted Java API code and whether Google infringes when it makes its own version intended to allow software programs to communicate with each other. It’s a high-stakes battle that has a good shot of being taken up by the Supreme Court. When it comes to the purpose and character of Boldly, Dr. Seuss analogizes the book to what Google did with Java.

“The Court does not find Oracle persuasive,” responds the judge, addressing what she sees as the key distinction. “in Oracle, the Defendants copied the 37 SE API packages wholesale, while in Boldly ‘the copied elements are always interspersed with original writing and illustrations that transform Go!’s pages into repurposed, Star-Trek-centric ones.’ Defendants did not copy verbatim text from Go! in writing Boldly, nor did they replicate entire illustrations from Go! Although Defendants certainly borrowed from Go!—at times liberally—the elements borrowed were always adapted or transformed. The Court therefore concludes, as it did previously that Defendants’ work, while commercial, is highly transformative.”

(2) The nature of the copyrighted work;

The judge finds that the factor of the nature of the copyrighted work — Dr. Seuss’ Oh, the Places You’ll Go — slightly favors the plaintiff before addressing the amount and substantiality of the portion used.

(3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole;

Judge Sammartino said that she considered the situation in the current case to be comparable to a suit about a poster created to advertise Naked Gun 33-1/3: The Final Insult:

Although the Court ultimately concluded that Boldly was not a parody, the Court concludes that this csse is most analogous to the situation in Leibovitz v. Paramount Pictures Corp. In Leibovitz, the defendant was alleged to have infringed a famous photograph of a nude, pregnant  Demi  Moore  that  appeared on the cover of the August 1991 issue of Vanity Fair. The photo of Ms. Moore was itself “a well known pose evocative of Botticelli’s Birth of Venus.”

As part  of  an  advertising  campaign  for  an  upcoming  movie,  the  defendant  commissioned  a  photographer  to  take  a  photo  of  another  nude,  pregnant  woman  in  a  similar  pose,  and  “[g]reat effort was made to ensure that the photograph resembled in metic ulous detail the one  taken  [of  Ms.  Moore]  by  [the  plaintiff],”  from  the  model’s  posture  to  her  hand  placement to the use of a large ring on the same finger.  The defendant’s photograph was then digitally enhanced using a computer to make the skin tone  and body shape more closely resemble that of Ms. Moore in the plaintiff’s original photo.  Leslie Nielsen’s face was superimposed on the model’s body, “with his jaw and eyes positioned roughly  at  the  same  angle  as  Moore’s,  but  with  her  serious  look  replaced  by  Nielsen’s mischievous smirk.”  The finished poster advertised that the movie was “DUE THIS MARCH.” 

The Second Circuit stressed that, “[i]n assessing the amount and substantiality of the portion used, [the court] must focus only on the protected elements of the original.”  Consequently,  the  court  reasoned,  the  plaintiff  “is  entitled  to  no  protection  for  the  appearance in her photograph of the body of a nude, pregnant female,” but rather  only  “the  particular  way  the  body  of  Moore  is  portrayed.”   

The  court  clarified that, “[e]ven though the basic pose of a nude, pregnant body and the position of the hands, if ever protectable, were placed into the public domain by painters and sculptors long before Botticelli, [the plaintiff] is entitled to protection for such artistic elements as the particular lighting, the resulting skin tone of the subject, and the camera angle that she selected.” The court ultimately concluded that the defendant “took more of the [plaintiff’s] photograph than was minimally necessary to conjure it up, but” that there was “little, if any, weight against fair use so long as the first and fourth factors favor the” defendant. 

As in Leibovitz, the Court must take care in distinguishing precisely those elements of the Copyrighted Works to which Plaintiff is entitled copyright protection.  Examining the cover of each work, for example, Plaintiff may claim copyright protection in the unique, rainbow-colored  rings  and  tower  on  the  cover  of  Go!  Plaintiff,  however,  cannot  claim  copyright over any disc-shaped item tilted at a particular angle; to grant Plaintiff such broad protection would foreclose a photographer from taking a photo of the Space Needle just so, a result that is clearly untenable under —and antithetical to—copyright law.  But  that  is  essentially  what  Plaintiff  attempts  to  do  here.    Instead  of  replicating  Plaintiff’s rainbow-ringed  disc,  Defendants  drew  a  similarly-shaped  but  decidedly  non-Seussian  spacecraft—the  USS  Enterprise—at  the  same  angle  and  placed  a  red-and-pink striped planet where the larger of two background discs appears on the original cover. Boldly’s cover also features a figure whose arms and hands are posed similarly to those of Plaintiff’s narrator and who sports a similar nose and eyes,  but Boldly’s narrator has clearly been replaced by Captain Kirk, with his light, combed-over hair and gold shirt with black trim, dark trousers, and boots. Captain Kirk stands on a small moon or asteroid above the Enterprise  and,   although  the  movement of the moon evokes the tower or tube pictured on Go! ’s cover, the resemblance is  purely  geometric.   

Finally,  instead  of  a  Seussian  landscape,  Boldly’s  cover  is appropriately set in space, prominently featuring stars and planets. In short, “portions of the old work are incorporated into the new work but emerge imbued with a different character.” 

(4) The effect of the use upon the potential market for or value of the copyrighted work.

The Hollywood Reporter summarized the court’s take on the last factor:

When it comes to Oh, the Places You’ll Boldly Go!, the judge concludes that it isn’t likely usurp its predecessor’s position in the children’s book market because ComicMix has targeted those familiar with both the Seuss and Trek canon with a work that includes some sexual innuendo (hello, Captain Kirk). The derivatives market is called a “closer question,” but the judge notes that Dr. Seuss has “introduced no evidence tending to show that it would lose licensing opportunities or revenues as a result of publication of Boldly or similar works.”

Judge Sammartino, finding this factor did not favor either party, invoked the Supreme Court’s statement in Fogerty v. Fantasy Inc. to justify ruling for ComicMix:

The Supreme Court has admonished, “[t]he primary objective of copyright is not to reward the labor of authors, but ‘to promote the Progress of Science and useful Arts.’   To this end, copyright  assures  authors  the  right  to  their  original  expression,  but encourages  others  to  build  freely  upon  the  ideas  and  information  conveyed  by  a  work.”   

Following the ruling an attorney for the losing side, Dr. Seuss Enterprises, said the group was “considering all of its options, including an immediate appeal to the Ninth Circuit.”

The text of today’s decision also revealed ComicMix originally planned to follow up Boldly with two other Suess/Trek mashups, “Picard Hears A Q” and “One Kirk, Two Kirk, Red Shirt, Blue Shirt,” whose fate is now uncertain.

[Thanks to Eric Franklin for the story.]

ComicMix Whittles Away Another Leg of Star Trek/Seuss Mashup Lawsuit

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Could the day be coming when Dr. Seuss Enterprises doesn’t have a leg left to stand on? In November 2016, during a Kickstarter campaign to fund Oh, The Places You’ll Boldly Go!, featuring the writing of David Gerrold, the art of Ty Templeton, and the editorial skills of ComicMix’s Glenn Hauman, Dr. Seuss Enterprises (DSE) filed suit for damages claiming the project infringed their copyright and trademark on Dr. Seuss’ Oh the Places You’ll Go! A new ruling has disposed of the trademark claims.

Although ComicMix suffered a setback in December 2017 when the federal Judge Janis L. Sammartino allowed both the copyright and trademark claims to go forward, on May 21, she applied a recent Ninth Circuit Court of Appeals precedent and granted ComicMix’s motion for judgment on the trademark issues. Only the copyright claims remain to be litigated.

The Hollywood Reporter article “‘Star Trek’/Dr. Seuss Mashup Creator Beats Trademark Claims” briefed the reasons for ComicMix’s latest victory.

At the time, ComicMix also argued that its work merited First Amendment protection under a test established in Rogers v Grimaldi, a 1989 decision that resulted from a lawsuit brought by the actress Ginger Rogers over the Fellini film Ginger and Fred. The test directs judges to examine whether use of a mark has artistic relevance, and if so, whether the work is explicitly misleading. Although ComicMix’s Boldly appeared to Sammartino to meet the criteria for protection, the judge highlighted a footnote in the Rogers decision that provided an exception for “misleading titles that are confusingly similar to other titles.”

…And but, something happened while all this was going down.

Fox Television was caught up in a fight over the title of Empire, its hit show about a feuding music-industry family.  Empire Distribution — a record label and publishing company that has worked with such hip-hop artists as T.I., Snoop Dogg and Kendrick Lamar — had brought its own trademark claims, but Fox prevailed, thanks to the Rogers test. This case went all the way up to the 9th Circuit Court of Appeals, which affirmed Fox’s win.

Soon after Dr. Seuss Enterprises scored its victory in December, ComicMix pointed to the Empire case as having disavowed the Rogers footnote that had created an opening for trademark claims over titles.

Sammartino agrees, writing that the 9th Circuit “applies the Rogers test rather than the likelihood-of-confusion test” and that the 9th Circuit states “that the [Rogers] footnote had only ever been cited once by an appellate court, and even then the Second Circuit had rejected its applicability.”

The parties are now scheduling witness depositions and preparing for the next round of litigation.

ComicMix Suffers Setback in Star Trek/Seuss Mashup Lawsuit

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Revoking part of an order she handed down this summer, federal Judge Janis L. Sammartino ruled December 8 that Dr. Seuss Enterprises gets to engage both copyright and trademark claims in a lawsuit against ComicMix for a crowd-funded book project titled Oh, The Places You’ll Boldly Go!

The litigation began last November, during a Kickstarter campaign to fund Oh, The Places You’ll Boldly Go!, featuring the writing of David Gerrold, the art of Ty Templeton, and the editorial skills of ComicMix’s Glenn Hauman, Dr. Seuss Enterprises (DSE) filed suit for damages claiming the project infringed their copyright and trademark on Dr. Seuss’ Oh the Places You’ll Go!

The judge had dismissed the trademark infringement portion of the claims in June (“ComicMix Gains Partial Victory in Dr. Seuss Lawsuit Over Literary Mash-Up”), however, The Hollywood Reporter story “Lawsuit Over Mashup of ‘Star Trek’ and Dr. Seuss Gets Past Alpha Quadrant” said the judge has considered an amended complaint and is allowing all the claims to move forward including one for unfair competition. (Here’s the full opinion.)

The biggest difference is the analysis of trademark and quite notably, what is causing ComicMix some trouble on that front is the font of its title.

Nominative fair use is an important concept in trademark law, referring to certain allowances to use another’s mark for purposes like commentary, criticism, comparative advertising, or parody. The standards were articulated by an appeals court in 1992 in a case where newspapers used toll numbers to conduct polls of The New Kids on the Block.

Sammartino looks at three factors to determine whether ComicMix has an appropriate defense of nominative fair use in this dispute. On two of those factors — whether the product in question is readily identifiable without use of the trademark and whether ComicMix has done acts that would falsely suggest sponsorship or endorsement by Dr. Seuss Enterprises — the defendants get the edge. But ComicMix can’t dispense with the trademark and unfair competition claims thanks to that other factor — whether its use of Dr. Seuss’ mark is more than reasonably necessary to identify it.

The mark in question is the title, “Oh, the Places You’ll Go!”

Judge Sammartino explained:

Defendants not only use the words ‘Oh! The Places You’ll Go!’ in the title of Boldly but also use the exact font used by Plaintiff. The look of the lettering is unquestionably identical on both books, down to the shape of the exclamation point. This situation is similar to that in Toho [a precedent case]. The Court finds it was unnecessary for Defendants to use the distinctive font as used on Go! to communicate their message (i.e., that Boldly is a mash-up of the Go! and Star Trek universes).

The reference to Toho is a callback to a case made by Toho, the controller of the Godzilla intellectual property, against a book publisher in 1998.

Glenn Hauman portrayed the decision to ComicMix readers in a positive light, focusing on this part of the ruling — “Judge rules that an illustration style can’t be a trademark”.

Yesterday, Judge Janis Sammartino handed down a ruling in our ongoing case, Dr. Seuss Enterprises v. ComicMix, allowing the case to proceed to discovery while narrowing the allegations in significant ways.

Quoting from the decision:

Plaintiff cited no authority to support its assertion that its general “style” is a protectable trademark. Plaintiff only argues that the book can be subject to both trademark and copyright protection and that distinctive characters can qualify as trademarks. Plaintiff claims the Ninth Circuit has recognized Plaintiff owns trademark rights to “the character illustration of the Cat [in the Hat’s] ‘stove-pipe hat’.” But the illustration of the Cat’s hat is different than the general “illustration style” and non-specific “characters and backgrounds found throughout” Plaintiff’s books, in which Plaintiff asserts trademark rights now. And Plaintiff does not allege trademark rights in any specific character or background image in [Oh, The Places You’ll] Go! The Court is not holding illustrations of specific characters within Go! are precluded from trademark protection, but at this stage of the proceedings and based on the information in front of the Court, the Court finds that Plaintiff’s claimed general “illustration style” is not protectable.

Hauman continued:

…When we speak of an artist’s “trademark style” we’re not actually speaking of a legal trademark, and as such it’s not something that can be legally claimed.

And this means that if, say, Ty Templeton draws a portrait of me looking like I was drawn by Dr. Seuss, there’s not a thing Dr. Seuss Enterprises can do about it.

Of course, this is generally a good thing. This means that no artist can be charged with stealing someone else’s “trademark style” or the way they draw (or for that matter, how they shoot a photograph or a movie). We all learn from each other, we all influence each other— particularly in comics— and we all build on other works and artistic traditions and styles to create new works of art to tell stories.

The judge summed up her decision — “the Court again cannot say as a matter of law that Defendants’ use of Plaintiff’s copyrighted material was fair,” which could be up to a jury if the case goes to trial. She denied ComcMix et al’s motions to dismiss DSE’s claim of copyright infringement, trademark infringement and unfair competition.

[Thanks to Carl Slaughter for the story.]

ComicMix Gains Partial Victory in Dr. Seuss Lawsuit Over Literary Mash-Up

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Last November, during a Kickstarter campaign to fund Oh, The Places You’ll Boldly Go!, featuring the writing of David Gerrold, the art of Ty Templeton, and the editorial skills of ComicMix’s Glenn Hauman, Dr. Seuss Enterprises (DSE) filed suit for damages claiming the project infringed their copyright and trademark on Dr. Seuss’ Oh the Places You’ll Go!

ComicMix LLC moved to dismiss the lawsuit, and the motion was partially granted on June 9. U.S. District Court Judge Janis L. Sammartino dismissed the trademark infringement claims, but allowed the copyright claim to proceed, awaiting proof of any harm to the Dr. Seuss estate’s licensing opportunities. The estate has been given two weeks to amend its copyright infringement claims.

As ComicMix reports:

Judge Sammartino found that the book is “a highly transformative work that takes no more than necessary [from Dr. Seuss’s books] to accomplish its transformative purpose and will not impinge on the original market for Plaintiff’s underlying work” She emphasized that the case has broader significance: “…This case presents an important question regarding the emerging ‘mash-up’ culture where artists combine two independent works in a new and unique way. … Applying the fair use factors in the manner Plaintiff outlines would almost always preclude a finding of fair use under these circumstances. However, if fair use was not viable in a case such as this, an entire body of highly creative work would be effectively foreclosed.”

The court decision also explained why it rejected the motion to dismiss the copyright infringement claim.

In codifying the fair use doctrine, Congress set forth four non-exclusive factors for courts to consider in evaluating whether a particular use of a copyrighted work is fair:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.

…As it stands in this case, factors one and four — which “…have ‘dominated the case law’ and are generally viewed as the most important factors[,] …currently stand in equipoise. Factor two weighs slightly in favor of Plaintiff [DSE], and factor three is neutral. And although it would appear that the purposes of copyright favor Defendants [ComicMix, et al], that determination is also a close and unsettled call. Ultimately, given the procedural posture of this motion and near-perfect balancing of the factors, the Court DENIES Defendants’ Motion to Dismiss. Specifically, without relevant evidence regarding factor four the Court concludes that Defendants’ fair use defense currently fails as a matter of law.

Doctor Seuss Enterprises has until June 23 to present evidence about the effect on the market for the work whose copyright is allegedly infringed.