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.

…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.]