On March 12, 2019, a California federal court judge tossed copyright infringement claims filed by Dr. Seuss Enterprises (the company that controls Dr. Seuss’ intellectual property), holding that a “mashup” of Dr. Seuss and Star Trek was protected by the fair use doctrine.

U.S. District Judge Janis L. Sammartino ruled that the new book “Oh, the Places You’ll Boldly Go!” written by ComicMix had transformed Seuss’ “Oh, the Places You’ll Go!” into something completely different.

“Defendants did not copy verbatim text from ‘Go!’ in writing ‘Boldly,’ nor did they replicate entire illustrations from ‘Go!’” Judge Sammartino wrote. “Although defendants certainly borrowed from Go!, at times liberally, the elements borrowed were always adapted or transformed.”

Judge Sammartino also ruled that the Seuss estate had done little to show that the market for the original book would be harmed by “Boldly,” which is one of the other major factors courts cinsider in deciding fair use. “Despite its admittedly Seussian appearance, ‘Boldly’ is clearly not a children’s book and there is a minimal risk that Boldly will usurp Go!’s market to the extent it is targeted to children.”

In previous rulings on this case, Judge Sammartino ruled that “Boldly” largely met the requirements for fair use, but decided that it was too early in the case to decide the issue. In particular, the judge said it was too soon to decide if the new book would harm sales of “Oh, the Places You’ll Go!”

Then on March 12, 2019, Judge Sammartino concluded that such harm seemed unlikely, and she ultimately declared that neither party had proven the issue one way or the other. In those neutral circumstances, she said the overall analysis favored fair use for a book that she had ruled was “highly transformative.”

Following the ruling, an attorney for Dr. Seuss Enterprises said the group was “considering all of its options, including an immediate appeal to the Ninth Circuit.”

Author’s Commentary:

The “transformative test” has made an “increasingly muddy morass of the “fair use” doctrine. SeeThe Tyranny of Fair Use (Part III): A Judge’s Critique, Explosive Data, and One Sad Saga, by Scott Burroughs (Small Firm Center, 2019). In Borrough’s article, he explains: In Kienitz v. Scconie Nation LLC (2014), Judge Leval of the Second Circuit Court of Appeals based his decision on the “transformative test.” Soon thereafter, Judge Easterbrook of the Seventh Circuit explained that Judge Leval’s approach was misguided, as the “transformative” test is not even one of the statutory factors to be considered under the Copyright Act. In fact, it actually conflicts with the Copyright Act’s language protecting an author’s exclusive right to create derivative works as found in 17 U.S.C. § 106(2). Judge Easterbrook further explained, “[w]e think it best to stick with the statutory list, of which the most important usually is the fourth (market effect).” However, as found in over 90 percent of recent “fair use” cases, the wrongful interpretation of the “fair use” doctrine has prevailed and has won out over the “market factor” that Judge Easterbrook acknowledges and the Supreme Court had consistently confirmed as the most crucial “fair use” factor.

Dr. Seuss Enterprises is represented by Gina L. Durham, Tamar Y. Duvdevani, Stanley J. Panikowski, Ryan Compton, James Stewart and Andrew Deutsch of DLA Piper.

ComicMix is represented by Dan Booth of Booth Sweet LLP and Michael A. Licari of Sprinkle Lloyd & Licari LLP.

The case is Dr. Seuss Enterprises LP v. ComicMix LLC et al., case number 3:16-cv-02779, in U.S. District Court for the Southern District of California.

* Lowe & Associates (“The Firm”) is a boutique entertainment and business litigation firm located in Beverly Hills, California. The Firm has extensive experience handling cases involving business, entertainment law and intellectual property, having provided top quality legal services to its clients since 1991. The Firm is recognized in multiple publications for its many achievements and high ethical standards, including Martindale-Hubbell and Super Lawyers.

Find us at our website at www.LoweLaw.com

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