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.
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.
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.”
The recent release of Pokémon Detective Pikachu has prompted some readers to get in touch and ask about the quality of movies based on video games.
Most of the questions were variations of: “Are video game movies the worst type of movie adaptations?
To answer this, I looked at all movies released in US cinemas between 1993 and 2018, inclusive. (See the Note section for a more detailed explanation of the dataset and sources).
I’m going to use the Metacritic score and IMDb rating to serve as measures of quality from the perspective of film critics and film audiences, respectively.
The answer, supported by all kinds of statistics and
graphs is — yes!
(2) FUTURE TENSE. Elizabeth
Bear’s “No Moon and Flat Calm” is the latest installment in the Future Tense Fiction series. In it,
author Elizabeth Bear imagines a crew of safety engineers on a routine trip to
a space that are thrown into sudden disaster onboard the station. How will real
future humans react to calamity when we’re millions of miles away from home?
And how much can training for such potential crises override our natural
…It was a tiny, artificial world called Waystation Hab, and my four classmates and I were approaching it in a shuttle we’d been crammed into for four months. My classmates and I were all postgraduate apprentices in the safety engineering internship program….
In a response essay, “How Will People Behave in
Deep Space Disasters?”, Amanda Ripley, journalist and author of The Unthinkable: Who Survives When Disaster
Strikes—and Why, tackles these
questions—and what they might mean for those striving to send humans to Mars
(3) DEFYING DOOMSDAY AWARD. Nominations for the D Franklin Defying Doomsday Award are being taken until July 31. The award grants one winner per year a cash prize of $200 in recognition of their work in disability advocacy in SFF literature.
This award is possible thanks to D Franklin, our wonderful Patron of Diversity who pledged the top pledge in our Pozible campaign, back in 2015. This allowed the funding of the award for three years, meaning that this will be the last year the award is given, although we hope the recognition helps those awarded in some small way.
The 2016 winner was Disability in Kidlit, a website and resource for discussing the portrayal of disability in middle grade and young adult literature.
The Defying Doomsday Award jury comprises Twelfth Planet Press publisher, Alisa Krasnostein, and Defying Doomsday editors, Tsana Dolichva and Holly Kench.
include non-fiction or related media exploring the subject of disability in SFF
literature. Works must have been published in 2018. Use this
form to submit nominations.The
winner will be announced in September 2019.
Of course, if one is of a certain vintage, one will have lived through Alexei Panshin’s annus mirabilis. In 1968, Panshin published three novels, two of which (Star Well and The Thurb Revolution) focused on wandering interstellar remittance man Anthony Villiers, who righted wrongs with wit and panache. 1969 saw the release of the third volume, Masque World, which raised what seemed at the time reasonable expectation of a new Villiers book every year or so. As it turns out, it has been (counts on fingers) half a century since the third book was published. Hope springs eternal.
There are footnotes at the end of
the article, in which the final line is –
Ditto Pratchett’s Discworld. I’d like more, but I’m not dissatisfied.
There was an empty seat in the front row when Good Omens had its world premiere in London on Tuesday.
But that’s not because organisers had trouble filling the gigantic (and newly reopened) Odeon in Leicester Square – quite the opposite, the event was packed out.
In fact, a seat was deliberately kept vacant for Terry Pratchett, the co-writer of the original novel, who died in 2015.
As a tribute, his trademark hat was placed in the front row as the premiere got under way.
As Peter White noted in Deadline, it’s highly unusual for a TV series such as Good Omens to “receive a glitzy world premiere in Leicester Square” as that’s “a feat usually reserved for big-budget superhero movies”.
A previously unknown yet print-worthy work by Stanis?aw Lem (unearthed from his immense archives; combed through by his son Tomasz and the author’s personal secretary Wojciech Zemek for the last 16 years) is truly a rare find. This is because the author of The Cyberiad unceremoniously burnt any and all of his own writings that he was not pleased with, in a bonfire at his home in the Kraków suburb of Kliny. He cast quite a lot of texts into the flames there, given that he wrote with such great ease. By what miracle did “The Hunt” manage to avoid the fate of other works that went up in smoke?
(8) ETCHISON OBIT. Horror author Dennis Etchison
(1943-2019) died during the night on May 29 reports his Facebook page. File 770 obituary
Porter has two photos of him taken earlier in his career, at the Nebulas in New
York City, and at a British Fantasy Convention, holding an award.
(9) TODAY’S BIRTHDAYS.
by Cat Eldridge.]
Born May 29, 1906 — T. H. White. Best known obviously for the wonderful The Once and Future King which I read a long, long time ago. Back in the Thirties, he wrote Earth Stopped and its sequel Gone to Ground, sf novels. Gone to Ground contains several fantasy stories which were later reprinted in The Maharajah and Other Stories. ISFDB also lists Mistress Masham’s Repose, The Elephant and the Kangaroo and The Master as the other novels by him, plus the aforementioned story collection. (Died 1964.)
Born May 29, 1909 — Neil R. Jones. Early pulp writer who some claim coined the word “ astronaut” which appeared in his first story, “The Death’s Head Meteor”, which was published in Air Wonder Stories in 1930. His stories taken together fit within the idea of a future history like those of Smith and Heinlein. (Died 1988.)
Born May 29, 1930 — Richard Clifton-Dey. Illustrator of many SF book covers including The Wizard of Venusby Edgar Rice Burroughs. He did not sign many of his originals so his widow has the final say what is an original and what is not. (Died 1997.)
Born May 29, 1952 — Louise Cooper. She wrote more than eight works of fantasy and was best known for her Time Master trilogy. Most of her writing was in the YA market including the Sea Horses quartet and the Mirror, Mirror trilogy. (Died 2009.)
Born May 29, 1953 — Danny Elfman, 66. Ok, pop quiz time. How many genre films can you name that he composed the music for? I came up with Beetlejuice, Pee-wee’s Big Adventure, Batman, Mars Attacks!, Edward Scissorhands, Batman Returns and the Men in Black films. And I’d forgotten he was in Oingo Boingo, a truly great pop band.
Born May 29, 1958 — Annette Bening, 61. Barbara Land in Mars Attacks!, Susan Anderson in What Planet Are You From?, and the Supreme Intelligence / Dr. Wendy Lawson in Captain Marvel.
Born May 29, 1960 — Adrian Paul, 59. Duncan MacLeod on Highlander. And yes, I watched the whole bloody series. His first appearance in genre circles was as Dmitri Benko in the “Ashes, Ashes” episode of the Beauty and the Beast series. He shows up next as Prospero in Masque of the Red Death. He’s got several series before Highlander, War of the Worlds (not bad at all) where he was John Kincaid, a short-lived role as Jeremiah Collins on Dark Shadows and an even shorter-lived rolled on Tarzán as Jack Traverse. His first post- Highlander Sf series is Tracker where he plays alien shapeshifter Cole / Daggon. A decade ago, he returned to a familiar role in Highlander: The Source. His last series role was playing Dante on Arrow. Note: this is not a complete list.
Born May 29, 1987 — Pearl Mackie, 32. Bill Potts, the companion to the Twelfth Doctor. The first openly gay companion in the history of the series. She’s got a podcast called Forest 404 which the BBC calls an “immersive sci-fi drama”. And finally she’s in the BBC Radio’s The Conception of Terror: Tales Inspired by M. R. James as Mika Chantry.
(10) COMICS SECTION.
Lio finds Gaiman fans in the most unexpected places.
Star Wars: Galaxy’s Edge, the $1-billion Disneyland attraction set to open May 31, will employ Stormtroopers to enforce a strict time limit on visitors. The Los Angeles Times reports that the four-hour rule is only one part of the park’s efforts to avoid overcrowding and a situation that feels as claustrophobic as being stuck in an Imperial trash compactor with a wookiee.
During the first three weeks after opening, guests will be required to make reservations and wear colored wristbands that designate their time slot. Once that four hours expires, the Galactic Empire forces will escort visitors out in a way likely more polite than normal Stormtrooper protocol.
(12) AND TO
THINK THAT I SAW IT ON AMAZON STREET. ComicMix’s
Glenn Hauman sent the link because he doesn’t want Filers to miss a new
literary work that navigates the space created by his legal victory over Doctor
Seuss Enterprises: “Oh,
That Book Of Chuck’s, Though!”
There’s really no way not to feel pioneering when Chuck Tingle‘s collection makes us feel like cheering. We hope DSE will not try now to state that this was a market they could– penetrate. Perhaps they have learned to keep their case shut. You limit fair use… you’ll get slammed in the butt.
Have you ever considered how handsome a sentient, physically manifested state was? Or dreamed about traveling abroad and having a fling with some charismatic living continent? This love of locations is an erotic fantasy as old as time, and who better to bring it to life than the world’s greatest author, two-time Hugo Award finalist Dr. Chuck Tingle.
AB: I didn’t get any positive response, so I decided to make a lateral move within the company to a sister group, and that’s when I started working for a gentleman named Fred Pollock. At that time, there were a handful of Intel Fellows in the company. These are the topmost technical folks at Intel. He’s an incredibly smart person and one of the top computer scientists. I spoke to him, and his view was, “I don’t know. You know what? Go convince yourself.” That’s all I needed. I needed somebody who would be open-minded enough to allow me to take this risk.
I didn’t just rely on him. I started socializing this idea with other groups at Intel. I talked to business guys, and I talked to other technologists, and eventually, I even went out and talked to Microsoft. And we spoke to other people who ultimately became our partners, like Compaq, DEC, IBM, NEC, and others.
Basically, I had to not only build a life inside the company, but we had to ally with people outside, and obviously, each company or each person that I spoke to had their own perspective on what it ought to be. One thing that was common was that everybody agreed that PCs were too hard to use and even hard to design around. Something had to be done, and that’s where it all began.
New Yorkers, get ready for another chance to marvel at Manhattanhenge.
For two days every spring and summer, the sunset lines up with Manhattan’s street grid, creating a gorgeous celestial spectacle. For a brief moment, the sun’s golden rays illuminate the city’s buildings and traffic with a breathtaking glow.
“It’s the best sunset picture of the year that you will have in this beautiful city,” Jackie Faherty, an astrophysicist at the American Museum of Natural History said to The Times in a 2017 interview. “Sometimes they call it the Instagram holiday.”
Manhattanhenge’s name is a homage to Stonehenge, the monument in England believed to have been constructed by prehistoric people and used in rituals related to the sun. During the summer solstice, the sunrise there is perfectly framed by its stone slabs.
… Some 200 years ago, the architects who created the plan for modern Manhattan decided to build it using a grid system with avenues that run north and south and streets east and west. That choice inadvertently set the stage for Manhattanhenge, according to Dr. Faherty.
It’s not as crazy as it sounds. According to a hypothesis astronomers have laid out in a new paper, the exploding stars at the end of their lives – supernovae – could have bathed Earth in cosmic radiation, beginning around 8 million years ago, and peaking around 2.6 million years ago.
This radiation would have ionised the lower atmosphere, likely resulting in an increase in cloud-to-ground lightning strikes. This, in turn, could have increased forest fires – eradicating the forests of Africa, where early humans are thought to have originated, and allowing the savannah to take their place.
You see, bipedal locomotion confers a number of advantages to human species, especially in the African savannah where height increases visibility.…
“Not as crazy as it sounds” – but maybe “not as
convincing as you’d like,” too.
In this post, I’ll be going over the nominees for Best Novelette. Novellettes are defined by the Hugos as works between 7,500 and 17,500 words, so these are stories that can be read in a single sitting, although, they still require a little bit of time to do that (for the longer end stories). I’m generally not the biggest reader of shorter fiction, so most of the nominees here were new to me (I’d only read 2 of the 6 nominated stories prior to the packet being released). Still, I really enjoyed pretty much all of the nominees – so I think all of these six are award worthy, and choosing how to rank them was not particularly easy….
…Most of us know what it feels like to experience food cravings. We usually crave higher calorie foods, which is why cravings are associated with weight gain and increased body mass index (BMI). But the story we tell ourselves about where these cravings come from could determine how easily we give into them.
It’s widely believed that cravings are our body’s way of signalling to us that we’re deficient in a certain nutrient – and for pregnant women, their cravings signal what their baby needs. But is this really true?
Much of the research into cravings has instead found that there are probably several causes for cravings – and they’re mostly psychological.
…There is evidence suggesting that the trillions of bacteria in our guts can manipulate us to crave, and eat, what they need – which isn’t always what our body needs.
This is because microbes are looking out for their own interests, says Athena Aktipis, assistant professor at Arizona State University’s department of psychology. And they’re good at doing this.
“The gut microbes that are best at surviving inside us end up being more frequent in the next generation. They have the evolutionary advantage of being better at affecting us in ways that get us to preferentially feed them,” she says.
In its latest effort to be involved in every aspect of our lives, Amazon is reportedly working on a new voice-activated wearable device that is capable of recognizing human emotions. According to Bloomberg, the wearable will be worn on the wrist, like a watch, and is described as a health and wellness product in internal documents. Lab126, the team behind the Echo and Fire Phone, is working on the device alongside the Alexa voice team…
(20) VIDEO OF THE DAY. In The
Quintet of the Sunset on Vimeo, Jie Weng looks at how five cats, including
Business Cat, Workout Cat, and Race Car Cat, view their owner.
[Thanks to Mike Kennedy, Cat Eldridge, Hampus
Eckerman, Glenn Hauman, Chip Hitchcock, ULTRAGOTHA, JJ, John King Tarpinian,
Martin Morse Wooster, Daniel Dern, Carl Slaughter, and Andrew Porter for some
of these stories. Title credit goes to File 770 contributing editor of the day Jayn.]
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;
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 analogizesthe 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.
Hollywood Reporter summarized the court’s take on the last
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.”
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.
The Arisia committee, inundated with messages, promises a reply this weekend.
Regarding a recent influx of comments, the Arisia Executive Board takes our Incident Response process and the safety and concerns of our community very seriously. We will follow up with a statement by the end of the weekend.
For a start, let's not hire people with a history of disregarding clearly established boundaries to lead safety teams, or to be on those safety team at all. Safety team should also receive training in how to take reports. @arisia
…Conventions have gotten better in recent years about establishing policies on abuse and harassment. When it comes to following and enforcing those policies, the record is spottier. I know of some instances where conventions have done an amazing job of following through and working to promote the safety of their attendees.
Crystal’s experience, when she reported this to Arisia, was … well, it sounds like she’s correct when she says she doesn’t think Arisia was prepared to deal with this situation. It’s one thing to create a policy. It gets messier when the accusation is against someone you know. Possibly a friend. Possibly an officer in your organization….
People are reevaluating their plans to attend or work on the con.
Marie Brennan responds to Huff’s statement in “On Arisia” —
…This is not a con I can trust with my safety, or that of anybody I know. So while I did not have any existing plans to attend Arisia — just a vague “ooh, I should do that someday!” intention — I now have very firm plans not to attend. Not this year, not next year, not any year until and unless this is made better. And if you’re an Arisia attendee, I encourage you to rethink that plan.
Effective immediately, please remove me from the org chart as Tiptree Bake Sale staff and from programming as a participant. I will not be attending Arisia until Noel Rosenberg is removed as President of Arisia, Inc. and Division Head of Operations, and is banned from the convention….
Many people have tweeted their concerns or outrage to the Arisia committee, including these writers, editors, and conrunners:
I was a program participant at @arisia from 2016-18. I was signed up for '19. I don't think I'll be there unless they remove this man, implement a clear plan to prevent anything like this from happening again, and prove they can follow their own code of conduct. https://t.co/hGiEKvS4i4
Well, now I don’t feel nearly as bad as I did for not going this coming year. The convention I thought I knew has been changing even more that I thought, the staff member near and dear to my heart has been dead for a decade. I think I can let this one go now.
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.
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.
(1) YOUNG PEOPLE. James Davis Nicoll asked the crew at Young People Read Old SFF their response to Octavia Butler’s “Bloodchild”. Two of the four readers said it was their first experience with the author. (The others didn’t say one way or the other.)
Octavia E. Butler was one of a small handful of African American SF authors back in the 1970s, an era when SF was often whiter than a crowd of naked albinos holding loaves of Wonder Bread in a snowstorm. Butler’s stories often focused on people doing their best from a position of profound weakness, striving despite slavery, apocalypse or worse. This example of her work won the 1984 Nebula Award for Best Novelette, the 1985 Hugo Award for Best Novelette, the 1985 Locus Award for Best Novelette and the 1985 Science Fiction Chronicle Award for Best Novelette.
Bob Shaw was born in Northern Ireland. Over the course of the three decades of his career, he won three BSFA awards and was nominated for the Hugo, the Locus, the Campbell, and the Clarke.
The Light of Other Days is an atypical Shaw. It is a classic idea story, a story in which an author tries to show unexpected implications of some new development. Slow glass, a material in which the speed of light is so slow it takes decades for light to pass from one side to the other of a thin sheet, was one of the rare examples of an idea veteran editor John W. Campbell considered actually original at the time of publication. It was shortlisted for the Nebula Award for Best Short Story and for the Hugo Award for Best Short Story.
Of course, just because professionals and fans liked a story half a century ago is no guarantee modern readers will. Let’s see what they thought….
(2) HUNGARIAN BLOGGER. Bence Pintér recommends the new English-language blog of Balázs Farkas, a Hungarian author; especially his post on Black Mirror.
Black Mirror needs to reinvent itself. The sooner, the better.
Don’t get me wrong. The fourth season has cleverly written, beautifully directed episodes throughout, as usual. It’s still the prime science-fiction anthology, and one of the most relevant TV series, even if contemporary science-fiction writers and futurologists already explored most of its ideas. The problem is, the new season didn’t have any new ideas, at all…
Last year Get Out was nominated for a Golden Globe in the category of Best Motion Picture – Musical or Comedy. Many consider Get Out one of the best horror films of 2017. I was intrigued for months, but I rarely watch movies nowadays, but I decided to see Get Out for myself and see whether it’s a comedy or a horror. Well, I found out it’s neither, but can be interpreted as both, and it’s really fascinating to see why.
“Do what thou wilt shall be the whole of the Law.”
The interesting thing about Aleister Crowley is that he really believed this. We don’t consider him a fiction writer (at least not primarily), but he went and did it for a while, because he could do whatever and whenever. So he wrote fiction, but only between 1908 and 1922, that’s merely fifteen years from his prolific and incredibly versatile mind. This was an era when he approached the literary world as a critic and writer, although at first quite reluctantly (“I had an instinctive feeling against prose; I had not appreciated its possibilities,” he wrote, later admitting that“the short story is one of the most delicate and powerful forms of expression”). He wasn’t only a writer, but he still made sure that his legacy includes a large collection of miscellaneous prose, now presented in a prestigious (and affordable) Wordsworth edition, titled The Drug and Other Stories.
…Except things started changing when Snoke passed that big tax bill. The very next day, we’re told our pensions are getting cut—which hardly matters, because Storm Troopers have a seventy-five-per-cent fatal occupational-injury rate. (Some from combat, but mostly guys falling into chasms off narrow ship walkways that for some reason don’t have guardrails.)
Sure, the galaxy’s health insurance wasn’t perfect, but at least I got a little subsidy from Vadercare. Snoke repeals the individual mandate and all these Storm Troopers, fresh out of the academy, thinking they’re invincible, go, “Awesome—I’m young and healthy, Han Solo’s dead, screw it.” My premiums suddenly shoot through the roof, so I’m going without it this year and hoping I don’t run into a freaking Jedi Knight. But how am I gonna pay for the infirmary visit when a trespassing Resistance fighter conks me on the head to steal my uniform and gain access to a ship’s inner sanctum, which now seems to happen every other year? And if my arm’s sliced off with a lightsabre, you think my Storm Trooper’s comp will cover the robotic prosthetic?
Bahrani, who co-wrote the telepic alongside Amir Naderi and reteams with Shannon after he starred in their feature 99 Homes, confessed that he told his agent at one point that he should call HBO and refund the network’s money because he felt that he couldn’t finish the script. He spoke at length about the parallels between Bradbury’s 1953 work and what’s happening in the world today.
“I don’t want to focus so much on [Trump] because I don’t want to excuse the 30 to 40 years prior to that; he’s just an exaggeration of it now,” he said. “I don’t want us to forget what Bradbury said — that we asked for this. We elected [politicians] over many decades, we’re electing this thing in my pocket [pulls out his cellphone]. Between the technological advancements in the last 20 years and politics, Bradbury’s biggest concern about the erosion of culture is now.”
Bahrani said he never had the opportunity to meet with Bradbury before his death but did an extensive amount of research, watching and reading multiple interviews and more. “Bradbury’s novel was set in the future where he was predicting having screens on the wall that you could interact with. Social media and supercomputers like my phone are real now. [The film] is not set in the distant future like Bradbury’s novel but an alternate tomorrow where technology is here right now — like Amazon’s Alexa,” he said. “One of the things in the film is storing knowledge, books in DNA. This exists now. All your drives could be stored 100-fold in DNA. There was no reason to put it in the future; it’s just [set in] a strange tomorrow.”
(5) THE TOLL. Kameron Hurley, who I admire for her unflinchingly transparent posts about her life as a writer, tells a heartbreaking story about her experiences in 2017 — “The Year I Drowned My Emotions”.
Depression is a complex state of being. I know we want to try and pretend it’s easy. Just pop a pill, increase your meds, try new meds, find something that works! But there’s also depression caused by external forces, and that’s the sort of depression that you can paint over with pills, sure, but the root of it is still there, like painting over a crack in your wall.
I was already feeling overwhelmed and deflated in the months leading up to the election. I was struggling with the reality that I’d produced three books in a year but still had to function at a day job, and the relentless treadmill of publishing was still going, without the sort of reward I needed in order to maintain my sanity. I’ve talked before about how writing all those books and then promoting books and having a weird dude-bro day job (at the time) conspired to murder me. What we don’t acknowledge is that when you experience that kind of breakdown followed by grief and disappointment, you can’t just… get back up like nothing happened.
Cinamon Hadley, whose appearance inspired the look of Death in the Sandman comic series, passed away today according to Sandman co-creator Neil Gaiman.
The body-piercer and goth icon whose portrait was immortalized as the second eldest in a family of anthropomorphized forces called the Endless, Hadley was described as extremely tall, extraordinarily thin, with bone-white skin, impeccable make-up and thin, black hair.
Rest in Peace, or head off to your next adventure, Cinamon Hadley. You gave Death of the Endless her face and her smile. https://t.co/lsikh0BHCW
From Emmy award-winning writer Kevin Shinick comes a lovable tale of Chewbacca the Wookiee and the pesky porgs of Ahch-To Island. Featuring adorable illustrations by artist Fiona Hsieh.
(9) WATCHWORTHY. In “Consumption: 2017”, John Harden makes “a list of everything I watched in 2017 plus my very excellent and totally correct opinions on same.”
I make this list every year, for fun and as a reference. As always, it only reflects things seen for the first time. “POLTERGEIST on TV, 14th viewing” doesn’t make the list. Nor do films not viewed in their entirety, for example, Guy Ritchie’s THE MAN FROM U.N.C.L.E, which got ejected from the Blu-Ray player after 15 minutes. I’d never seen Henry Cavill in anything before but he seems to emit some kind of anti-charisma particle.
I didn’t bother making a numbered best-of list this year. But if I had, LOGAN would be at the top. It’s perfect. Damn you James Mangold, for making me cry at your Wolverine movie.
To calculate the Hubble Constant, Prof Riess and others use the “cosmic ladder” approach, which relies on known quantities – so-called “standard candles” – such as the brightness of certain types of supernova to calibrate distances across space.
However, a different approach uses a combination of the afterglow of the Big Bang, known as the Cosmic Microwave Background (CMB), as measured by the Planck spacecraft and a cosmological model known as Lambda-CDM.
The Hubble Constant obtained using these data is 66.9 kilometres per second per megaparsec. (A megaparsec is 3.26 million light-years, so it follows that cosmic expansion increases by 66.9km/second for every 3.26 million light-years we look further out into space).
The gap between the two is now at a confidence level of about 3.4 sigma. The sigma level describes the probability that a particular finding is not down to chance. For example, three sigma is often described as the equivalent of repeatedly tossing a coin and getting nine heads in a row.
A level of five sigma is usually considered the threshold for claiming a discovery.
However, Prof Riess said that at the three sigma level “this starts to get pretty serious I would say”.
Big things sometimes come in small packages. That’s the hope of Finnish start-up ICEYE, who are about to see their first satellite go into orbit.
The young company are making waves because they’re attempting what no-one has dared try before; indeed, what many people had previously said was impossible.
ICEYE aim to launch a constellation of sub-100kg radar micro-satellites that will circle the Earth, returning multiple pictures daily of any spot on the globe, whether it’s dark or light, good weather or bad.
The special capability of synthetic-aperture radar (SAR) satellites to sense the planet’s surface whatever the conditions is loved by government and the military, obviously – and they make sure they always have access to this kind of imagery.
But here’s the rub: the spacecraft that gather this sort of data have traditionally been big, power-hungry beasts.
If this was just about wasted potential, Valerian would easily be on the top of this list. There are five worse movies this year but none of them have a fraction of the visual artistry displayed here by Luc Besson. Valerian has some of the best design I’ve seen in a movie all year and two of the most inventive chase sequences maybe ever. It also features a terrible script that meanders forever over trivial nothing and merrily skips past dense plot without a moment for inspection. I loved watching the action but I never really understood why any of it was going on. Toss on top some of the worst chemistry I’ve ever seen between an on-screen couple (and honestly maybe Dane DeHaan isn’t ready to be a leading man) and this is an unpleasant movie to watch at any volume above mute.
The fossilised remains of a giant burrowing bat that lived in New Zealand millions of years ago have been found on the country’s South Island.
The teeth and bones of the extinct bat were found to be three times the size of an average modern bat.
The bat, which weighed around 40g (1.41oz), not only flew but also scurried about on all fours looking for food.
The remains were recovered from ancient sediments near the town of St Bathans.
(15) ALTERED CARBON. Netflix has released Altered Carbon Official Trailer # 3.
In the distant future, human consciousness can be digitized and downloaded into different bodies. Brought back to life after 250 years by Laurens Bancroft (James Purefoy) the richest man on Earth, ex-Envoy soldier Takeshi Kovacs (Joel Kinnaman / Will Yun Lee) must solve Bancroft’s attempted murder for the chance to live again in a world he doesn’t recognize. Altered Carbon debuts exclusively on Netflix February 2nd, 2018.
(16) SCORCHED EARTH. The Official Trailer –
The planet has suffered an environmental collapse; the air became dangerous to breathe, the water became toxic, and billions of people died. Generations later, mankind has finally re-established a rudimentary society, in an attempt to pick up the pieces that continue to blister in the sun. Attica Gage (Gina Carano) is a bounty hunter with a chance at the bounty of a lifetime: to bring down the ruthless outlaw, Elijah Jackson. Gage infiltrates Jackson’s gang, and everything is going to plan until she meets a slave girl who reminds her of her dead sister. With her loyalty to only herself now tested, Gage learns that there might be more to life than just survival.
[Thanks to Michael J. Walsh, JJ, John King Tarpinian, Mark Hepworth, Martin Morse Wooster, Carl Slaughter, Cat Eldridge, and Andrew Porter for some of these stories. Title credit goes to File 770 contributing editor of the day Ingvar.]
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 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!”
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.
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.
…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.
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!
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.”
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.
While the Kickstarter was in progress, Dr. Seuss Enterprises (DSE) objected, claiming that the project infringed their copyright on Dr. Seuss’ Oh the Places You’ll Go! They filed suit for damages on November 10 in Dr. Seuss Enterprises vs. David Gerrold, et al.
Now ComicMix’s Haumann reports his attorneys have filed a motion to dismiss the Dr. Seuss lawsuit on the grounds that Oh, The Places You’ll Boldly Go! constitutes fair use of any elements of Dr. Seuss books protected by copyright or trademark law.
Even at the start of the campaign, ComicMix acknowledged there could be problems moving forward with the book project, telling potential donors “there may be some people who believe that this might be in violation of their intellectual property rights. And we may have to spend time and money proving it to people in black robes. And we may even lose that.”
Just before the crowdfunding campaign was completed, raising nearly $30,000, Dr. Seuss Enterprises made a copyright claim to Kickstarter, forcing the company to remove the campaign and freeze the funds. That prompted an angry letter from ComicMix attorney Booth just before Halloween.
In that letter, Booth demanded the Seuss people to reinstate the campaign, especially since Kansas City-based Andrews McMeel Publishing had agreed to publish the book, and rush it for a Christmas release.
“Also anticipating Christmas sales, one vendor ordered 5,000 copies of the book as long as printing and shipping are completed by Nov. 11, but ComicMix expects to lose that order because, thanks to your notice, Kickstarter is withholding all $29,575 that the campaign raised, so ComicMix cannot use that money to cover the printing costs as intended.”
The Memo of Points and Authorities filed with the court outlines the defense’s arguments for dismissal. Here are two excerpts illustrating their main justifications. The memo itself also contains highly-detailed narrative comparisons showing the differences between the original work and ComicMix’s takeoff.
Introduction: Oh, the Uses Seuss Sues!
Defendant ComicMix LLC (“ComicMix”) respectfully moves the Court for an order dismissing this matter for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6), on the grounds that ComicMix’s allegedly infringing book constitutes fair use of any elements of Dr. Seuss books protected by copyright or trademark law.
This case presents a simple question: May an author’s estate use the courts to stymie publication of a book that makes critical, parodic use of the author’s books? On the facts alleged, the answer must be no. The Copyright Act, the Lanham Act and the First Amendment fully protect ComicMix’s right to comment and build on Dr. Seuss’ works. The law does not place his beloved books above parody, beyond critical commentary, or past the reach of cultural transformation and nominative use….
Copyright law limits the scope of DSE’s claims.
DSE alleges that Boldly infringes its copyrights to Go!’s title, “story arc,” and characters and illustrations from Go!, Horton Hears a Who, How the Grinch Stole Christmas! (“Grinch”), The Lorax, and The Sneetches and Other Stories. Doc. 1 ¶ 26. Yet copyright covers few of those elements, and Boldly infringes none….
DSE declines to identify any such well-delineated character, leaving its allegation of character “misappropriation” wholly speculative. No character in Go! meets this standard. The one character to appear more than once (except perhaps some elephants, who do not reappear in Boldly) is the protagonist, a walking cipher. The boy has no name or dialogue and few distinguishing characteristics beyond his yellow knit-cap and onesie. This lightly sketched everyman lacks the “distinctive character traits” required to be protectable by copyright. Towle, 802 F.3d at 1020. Further, Boldly does not copy any Dr. Seuss character or its traits. In the boy’s place is the Enterprise’s captain, wearing the uniform of Star Trek commanding officers (a gold shirt with an arrowhead insignia over the left breast, and black trousers) or a spacesuit, or on one page, a green tunic like Captain Kirk sometimes wore. His spiky, adult hairstyle is not covered by a child’s knit-cap. Boldly’s wholly distinct characters do not infringe on any protectable character trait of the original. Nor does Boldly infringe on Go!’s simple, episodic storyline. See RJN Ex. 6. In Go!, the boy decides to leave town. He joins a balloon race, taking the lead before getting stuck in a tree. He lands in a “Slump,” comes to a place with unmarked streets, and has a hard time deciding where to turn. In confusion, he races down the road to “The Waiting Place,” where “everyone is just waiting.” He escapes to watch a musical performance by a “Boom Band”, then to join a parade of banner-flying elephants, and then to play on a convoluted ball-field. His athletic skill makes him world-famous, but he is again left all alone to face more scary things. Copyright does not protect the general plot line of an adventurer persevering as he faces both emotional and physical highs and lows. “The copyright of a story covers what is new and novel in it.” Bradbury v. CBS, 287 F.2d 478, 485 (9th Cir. 1961). “General plot lines are not protected by copyright law.” Cavalier v. Random House, Inc., 297 F.3d 815, 823 (9th Cir. 2002) (internal citations omitted). “Familiar stock scenes and themes that are staples of literature are not protected.” Id.
Any story element in Go! that is not too generic to warrant copyright protection is not copied in Boldly, which depicts no confusing streets, balloon races, Slump, Waiting Place, music, elephants, or parades. The Go! boy’s one idiosyncrasy, a talent for playing an unusual multi-player sport, also does not recur in Boldly. Instead, Boldly is filled with allusions to episodes of the original Star Trek series. Any similarities between the plot lines of Boldly and Go! are generic and unprotectable.
The judge has allowed the plaintiff until January 19 to file its opposition to the motion to dismiss. Thereafter, ComicMix will have three weeks to file any reply. And the judge set a hearing for March 16, 2017.