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.]
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“Seussian rhymes.” Did Theodore Geisel invent heroic couplets? Roll over John Dryden and give Alexander Pope the news!
Summary judgment at last we’ve received,
And our victory has been finally achieved.
The judge ruled at last that our book is fair use
And so we’re allowed to mash-up Trek and Seuss.
We don’t want to brag. And we will not gloat.
Allow us instead, to gratefully promote—
We thank the lawyer who brought sound defeat
To DLA Piper— we think Dan Booth’s sweet!
Michael Licari helped us out as well,
And Ken White lit his signal, which really was swell.
We thank all our backers who gave us their aid,
Which helped us to battle our legal crusade.
You all gave support as the motions dragged on,
Without you it’s impossible to have boldly gone.
John A: They could claim they owned this style of verse
were it not for the fact C.C. Moore got there first.
Horton Sues a Who
The crowd gathered there in the court took a pew
To learn of the verdict in Horton v Who
The elephant claimed that his verse had been took
By spacefaring Whos for their parody book.
The Whos said instead that their use had been fair
For they’d moved it from Mulberry Street to Out There
“Judge,” Horton said, “how can you permit
Them to trade on my style even one little bit?”
“I meant what I said and I said what I meant
Whether uses are fair depends on precedent.”
The judge banged his gavel and lifted his hat
So the court saw on top of this most learned cat
A smaller cat in his hat sitting there plain as day
Said the judge “I present to you Exhibit Cat A.”
Then this cat lifted his hat, until all could see
Three more cats in turn, labeled Cats B through D.
“Each cat has a test to determine fair use
Like a train with an engine, two cars and caboose.
Each one will now speak, like a voice in a chorus
And consider the rulings of cats gone before us.”
“The question at hand,” said Cat A to the Who,
“Is this like My Sweet Lord or more like 2 Live Crew?
Did you transform the work, like a fox knitting socks,
Or copy it with a xerox-a-ma-box?
Is this merely a clone, as Horton has feared,
Or a Mirror ‘verse twin, like with maybe a beard?”
“For my part,” Cat B said, “I base my reflection
On if Horton’s work deserves extra protection.”
“But how much was used?” shouted little Cat C.
Was it small as a daisy or big as a tree?
Or was the original small as a hair
So tiny that no replication is fair?”
Said Cat D, “I must know, will it cost Horton dough
If we tell Horton no and the Whos boldly go?
For me that decides if the book should be trashed
Or if Whos are permitted to make their Who-cash.”
Then the judge tipped his gavel atop of his nose
Where he put two half-bagels, and then upon those
He spread some cream cheese and some slices of lox
Plus some ointment he got from a doctor named Phlox.
Said the judge “I must find a balance in all of these parts
Between rights of authors and progress of arts.
I’ve considered this matter with thought and with care
And decided that overall, this use is fair.”
Said Horton, “That ruling’s a license to steal –
I’ll say just as much when I make my appeal.”
The Whos were elated, and so boldly they go
“On to more books, we say — make it so!”
@ Matthew Johnson
hear hear! exceptional work!
(extra points for mentioning other copyright cases!)
Matthew Johnson: Applause. I’ll be in contact re: borrowing lines.
Glad to hear the good news, Glenn!
Wild applause!
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