File 770 reported in September a crowdsourced appeal for funds to publish 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.
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.
A GeekNation article by Michael Hinman summarizes the contacts between DSE and ComicMix prior to the lawsuit:
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.”
ComicMix’s response to the suit and its motion to dismiss are analyzed by Janet Gershen-Siegel at Semantic Shenanigans (“Seuss v. Gerrold, et al – Getting the Ball Rolling”). Her post includes links to copies of all the defense’s filings.
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.
