Quick Rec for The Tick Season 2, on Amazon Prime

By Daniel Dern: Since I have been buying my comic books at The Outer Limits in Waltham for the past 30+ years, rather than at New England Comics, I was not exposed to NEC’s newsletter mascot, the Tick, nor the ensuing comic books, nor the 1994-1997 animated TV series, although we did watch the 2001-2002 live action, directed by Barry Sonnenfeld (Miller’s Crossing, When Harry Met Sally, A Series of Unfortunate Events — the TV series and the movie), etc., starring Patrick Warburton as the loveable big blue goof.

(Disclaimer: I remember watching it, but only vaguely remember the episodes, although browsing web articles is jogging my memory.)

In 2017, Amazon rebooted The Tick as a 25-minute series. It’s arguably grittier than the previous live-action (although, of course, I’d have to rewatch that to verify)… but it’s also got a lot of heart and humanity. And great characters. And speaking to the nature of comic books and superheroes, as large-font subtext, as it were.

Season 2 went up about a week ago, and while I didn’t quite binge it, I did prioritize it over some other things, like (some) reading. (At 10 25-minute episodes, that wasn’t that big a commit.)

Enjoyable. Some surprises. Like Expanse book #8, Tiamat’s Wrath, it both starts and wraps up a hornets’ nest of plotlines (including some from the previous season), and positions us (and the various characters) for what looks like should be one heck of a Season 3 (assuming there is one, hope hope).

Two comments:

(1) John Hodgman (who some may remember from The Daily Show), who’s been on various other movies and TV shows I mostly haven’t seen (hmmm, including 1 episode of Battlestar Garlictica Galactica) (and Amazon’s Red Oaks, which we did see), has a role throughout this season.

(2) The producers/writers have clear [ROT-13] gur 1978 FHCREZNA zbivr n srj gvzrf, cre gjb ovgf/fprarf. (I don’t think this is a spoiler, but just in case…)

Two big goofy thumbs up!

Ms. Marvel Digital Director’s Cut Deal Offered Til 3/26

[From the press release.] Ms. Marvel is BACK! But it’s not business as usual in Jersey City. Aliens are wreaking havoc in Kamala’s corner of the world, and they seem weirdly interested in Ms. Marvel…and her family. Eisner Award-winner Saladin Ahmed (Black Bolt, Exiles) and rising star Minkyu Jung (Batgirl, Nightwing) take the reins of one of Marvel’s most beloved new characters! And, for a limited time, you can get a behind-the-scenes peek at Kamala’s groundbreaking ongoing!

Those who have preordered or purchased a digital copy of Magnificent Ms. Marvel #1 before 3/26, 11:59 PM ET, will instead receive the Director’s Cut edition of Magnificent Ms. Marvel (2019-) #1!*

This exclusive content will feature a draft of #1’s script, inked pages, color pages, a variant cover gallery, never-before-seen character designs and MORE! Not only will you receive this landmark issue – you’ll get to see the building blocks of its creation! Limited time offer, act now!

Buy Magnificent Ms. Marvel (2019) #1 in the Marvel Comics App or Digital Comics Shop Today and receive a Behind-the-Scenes Extras at no extra cost!

Court Rules Star Trek/Seuss Mashup Is Copyright Fair Use

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.]

Philip K. Dick’s Life in Comics

PKD would have loved it — NBM Graphic Novels released Philip K. Dick, A Comics Biography on January 1.

Philip K. DICK: A Comics Biography

Laurent Queyssi, writer, Mauro Marchesi, art

One of the greatest writers in SF history, Philip K. Dick is mostly remembered for such works as Blade Runner, Minority Report and Total Recall. His dark fascinating work centered on alternate universes and shifting realities in worlds often governed by monopolistic corporations and authoritarian governments. His own life story seems a tussle with reality, going through five wives and becoming increasingly disjointed with fits of paranoia and hallucinations fueled by abuse of drugs meant to stabilize him. His dramatic story is presented unvarnished in this biography.

NBM has a sample page online where Dick is in conversation with Harlan Ellison about Dangerous Visions.

Busiek and Ross Back for 25th Anniversary of MARVELS


Celebrating the 25th anniversary of the series that changed the way fans look at super heroes, the landmark MARVELS is back. In the year 1939, young photojournalist Phil Sheldon attends the sensational unveiling of the fiery android Human Torch — little knowing he is witnessing the dawn of the Age of Marvels.

Prepare to relive Marvel’s Golden Age from a whole new point of view as Phil covers the superhuman sightings of the 1930s and 1940s — from the terror caused by the Human Torch’s epic clash with the Sub-Mariner to the patriotism stirred by the debut of Captain America and more. This unique look back at the MARVELS phenomenon is packed with extras and completely remastered.

Lauded as “a classic and watershed moment for the industry” by IGN and “a landmark” by Publisher’s Weekly, fans are invited to celebrate the 25th anniversary of Kurt Busiek and Alex Ross’ groundbreaking and critically-acclaimed series MARVELS.

In February, MARVELS ANNOTATED kicks off the series with never-before-seen commentary from Kurt Busiek and Alex Ross. Read the original MARVELS series with new covers and insight from the creators themselves.

Marvel also will release exclusive monthly MARVELS 25th anniversary variant covers, painted by the legendary Alex Ross, starting with FANTASTIC FOUR #6 in January, TONY STARK: IRON MAN #9 in February, and THE IMMORTAL HULK #15 in March. Later in June, 20 artists will come together to pay tribute in a MARVELS 25th anniversary homage variant program across Marvel’s most popular titles.

Conan Returns in January

This January, Jason Aaron, Mahmud Asrar, and Esad Ribic will bring Conan back to Marvel in the all-new series Conan the Barbarian #1. To celebrate Conan’s triumphant return, Marvel is releasing a series of variant covers showcasing the sword-slashing hero with a series of variant covers showcasing Conan facing off against some of Marvel’s most important heroes – and villains. Here are some examples —

After Bleeding Cool Interviews Vox Day, IndieGoGo Axes Latest Alt-Hero Comic Campaign

Bleeding Cool interviewed Vox Day about his nascent comics publishing business in “Vox Day: Altered States of America” [Internet Archive link — but see Update] . Day’s Castalia House imprint Arkhaven Comics has published 22 comic books and graphic novels in the past year, using crowdfunding to generate capital and create sales.

Mark Seifert precedes his interview with a multi-thousand word apologetic seeking to manage fan reaction to Bleeding Cool’s platforming of the controversial figure, the kind of response Vox Day anticipated (see “Interview with Bleeding Cool” [Internet Archive link]) when he promoted it on Vox Popoli

I expect a fair number of SJWs will be outraged by the fact that Bleeding Cool acknowledged my existence at all, and when they did, failed to devote the entire interview to angrily denouncing NAZICOMICSHATE, but then, birds will fly and fish will swim too.

And, indeed, there was a hostile reaction on Twitter —

Throughout Bleeding Cool’s interview Matt Seifert delivers plenty of pitches right into Vox’s wheelhouse. For example —

BC: Now let’s talk about the other part of your response there — your assertion that major publishers are restricting who they will hire to produce comics based on their political beliefs. One of the elephants in the room there is that Ike Perlmutter, chairman of Marvel Entertainment, is one of the Republican Party’s largest donors. He’s a man who has President Trump’s ear. He is also legendary for his attention to the details, and for the level of control he exerts over those details. There’s little doubt that if he thought an ideological course correction in Marvel’s output was necessary and/or more profitable, he would be bringing that about with speed. Why hasn’t he been doing that?

VD: Mr. Perlmutter’s mysterious inaction notwithstanding, it is an absolute fact that major publishers, in both comics and science fiction, restrict who they will hire and who they will publish based on their political beliefs. Two of the writers I publish, Chuck Dixon and Nick Cole, were directly told by editors at Marvel and HarperCollins that they would never be permitted to work with them again. I am a novelist myself and I have been personally told by people who work for Tor Books as well as authors published by Tor Books, the largest science fiction publisher, that I would never be published by Tor due to my ideological beliefs. I also know several illustrators and colorists who have been blackballed by either Marvel or DC. Why do you think it’s so easy for Arkhaven to find excellent, experienced artists who are excited to work with us? They understand we aren’t interested in policing their thoughts or opinions.

An unexpected consequence of the interview is that IndieGoGo shut down Arkhaven’s current fundraiser for Alt-Hero: Q, refunded backers’ money, and posted this banner over the webpage —

This campaign has been closed by Trust and Safety due to a violation of our Terms of Use. The campaign will no longer be accepting contributions, and the Campaign Owners no longer have access to the campaign.

The comic had been advertised to be “an incendiary 150-page graphic novel in six parts that explores the mysterious phenomenon of QAnon. The story is written by the legendary Chuck Dixon, who is backed by a first-rate professional art-and-production team.”

In a video commentary posted this afternoon, Vox Day said he believes Bleeding Cool readers lobbied IndieGoGo to get the Alt-Hero: Q book pulled from the crowdfunding site.

And he told readers of his blog (“Indiegogo cancels AH:Q” [Internet Archive link]) —

Needless to say, we’re looking into this. We’ve got everyone’s email addresses and so forth, so if we have to set up our own crowdfunding platform, we will do so. However, in light of the fact that Indiegogo has done this retroactively, we are already looking into the legal aspects of their actions. I am not yet aware of any reason, in fact, I do not even know if the scheduled payment for the campaign was delivered on schedule or not two weeks ago. I assume not, but I won’t be able to confirm that until tomorrow.

Update: Bleeding Cool Removes Interview and Apologizes: Seifert’s interview didn’t last to the end of the first day before public reaction prompted Bleeding Cool to remove it and issue “An Apology Concerning Vox Day: We Made a Mistake” —

Today one of our writers made an error in judgement resulting in giving exposure to viewpoints that we abhor. We will do better, going forward, and that is a promise. The author admits that this was an extreme error of judgement that never should have been made and that other members of the Bleeding Cool writing staff were unaware of the contents of this article.

Seifert has been Bleeding Cool’s managing editor, however, Kaitlyn Booth, who wrote the apology, announced —

In a first step towards that end we are announcing, effective immediately, I am stepping into the role of Editor-in-Chief and will be implementing new review policies across the Bleeding Cool teams.

Update 10/11/2018: Soon after this post went online Bleeding Cool yanked the Seifert interview. I then changed the link to the Wayback Machine’s capture of the page, which worked when I first searched it, however, that link isn’t working now. No idea what’s making it impossible to retrieve. Subsequently Jon Del Arroz posted a different archive link which is working and looks like a valid copy, so I have changed to that.

Titan Comics Launches Thirteenth Doctor Who Comics Line This Fall

[Based on a press release.] 

Heralding a new era for Titan’s Doctor Who line, Titan Comics and BBC Studios are proud to reveal launch details for Doctor Who: The Thirteenth Doctor #1, featuring variants from leading artists including Babs Tarr (Batgirl, Motor Crush), Sarah Graley (Rick and Morty), Katie Cook (Adventure Time), Ariela Kristantina (Mata Hari), and Paulina Ganucheau (Zodiac Starforce).

This Fall, join the Thirteenth Doctor in a new series of comic adventures. Taking control of the TARDIS for this regeneration are Eisner-nominated writer Jody Houser (Stranger Things, Mother Panic, Faith, Spider-Man), illustrator Rachael Stott (Doctor Who, Motherlands), and colorist Enrica Angiolini (Warhammer 40,000).

The new comic series sees the Doctor return – played by Jodie Whittaker (Broadchurch) – to travel the cosmos with three brand new friends: Graham (played by Bradley Walsh), Yasmin (Mandip Gill), and Ryan (Tosin Cole).

To commemorate this exciting series, Titan is celebrating this debut issue by launching thirteen variant covers, including art covers by Doctor Who fan-favorite artist Alice X. Zhang, series artist Rachael Stott, Babs Tarr (Batgirl, Motor Crush), Sanya Anwar (Assassin’s Creed), Paulina Ganucheau (Zodiac Starforce), Sarah Graley (Rick and Morty), Ariela Kristantina (Mata Hari) and Katie Cook (Adventure Time). Plus, a photo cover, a cosplay variant and a fantastic Doctor Puppet variant by Alisa Stern – creator of the beloved Doctor Puppet Youtube series. Doctor Who: The Thirteenth Doctor #2 will feature covers by Paulina Ganucheau and Rachael Stott, as well as a stunning photo cover.

Doctor Who: The Thirteenth Doctor #1 is part of Titan Comics’ larger plans for the Thirteenth Doctor in 2018, including; Doctor Who: The Thirteenth Doctor Vol. 0 – which sees the Doctor relive memories from her many incarnations, showcasing unseen adventures from EVERY version of the Doctor!; and Doctor Who Comics Day on November 24 – where fans and stores unite to celebrate everything Doctor Who!

Doctor Who: The Thirteenth Doctor #1 hits stores and digital devices in the Fall. The

ISSUE #1 COVERS

ISSUE #2 COVERS

DC Universe Pre-Order Offer

By Daniel P. Dern: As a DC fan who also reads Marvel (and other) comics, while I enjoy Marvel’s streaming comic service (not all titles or issues, and nothing less than 6 months old, but still a great value if there’s enough of interest), I’ve been hoping DC would catch up. (Hoopla Digital, free via your library card, offers a reasonable range of comics from DC, Marvel and many other publishers, but the per-month limits are, well, limiting.)

I’m hoping that DC Universe, announced recently, will feed more of my DC comic jones. I’ve gone ahead and pre-ordered, $75-ish for a year (and 3 months free as a pre-order); the launch is “Fall 2018.” We’ll see. (It looks like there’s also lotsa movies’n’video, tho whether that’s available via non-DC, ahem, channels is also Not Yet Known (by me, anyway).

The main URL is: https://www.dcuniverse.com/coming-soon/

(The trailer really doesn’t provide any info, IMHO.)

ComicMix Suffers Setback in Star Trek/Seuss Mashup Lawsuit

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.]