Most people are familiar with the Dr. Seuss book which have a distinctive rhyming style of wording and distinctive style of illustrations. Dr. Seuss Enerprises, L.P. (“Seuss”) owns the intellectual property in the Dr. Seuss works. Oh the Places You’ll Go! written by the author known as “Dr. Seuss” chronicles a path of exploration and discovery. Seuss licensed numerous works based on the book previously.
In 2016, ComicMix LLC (“ComicMix”) sought to publish a Star Trek and Dr. Seuss mashup book entitled Oh the Places You’ll Boldly Go! (“Boldly”) based on Oh the Places You’ll Go! as well as other Dr. Seuss books (collectively referred to herein as “Go”). In Boldly, Star Trek characters explore a Seussian world similar to that in Go. ComicMix admittedly copied portions of Go as accurately as possible. This included matching the structure of the text as well as closely mimicking several illustrations in Go. For example, see below:
ComicMix chose not to obtain a license from Seuss. They believed Boldly parodied Go and thus did not infringe the Seuss copyright on Go. Rather, ComicMix believed Boldly fell under the fair use exception of copyright law. Notably, ComicMix did not consult an attorney prior to making this assumption.
Fair Use Factors
The non-exclusive four factors for a fair use defense include:
- The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- The nature of the copyrighted work;
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- The effect of the use upon the potential market for or value of the copyrighted work.
District Court Decision Against Seuss
The District Court agreed with ComicMix and found that the Boldly work fell under the fair use exception. Accordingly finding Boldly did not infringe the Seuss copyright for Go. Although the Court stated Boldly was a transformative use, not a parody. The Court granted summary judgment for ComicMix. Seuss appealed the ruling to the Ninth Circuit Court of Appeals.
Appeals Court Decision Found for Seuss
The Appeals Court reversed the District Court decision with respect to fair use. The Court noted by definition, a parody must “use some elements of a prior author’s composition to create a new one that, at least in part, comments on that author’s works.” The Court found that Boldly does not critique or comment on Go. The Court noted that broadly mimicking the characteristic style of Dr. Seuss is not the same as ridiculing the style. Further, Boldly does not express a critique of Go. Rather, the book merely tells the story of the Enterprise crew’s adventures.
Further, the Court found Boldly is not otherwise transformative. Transformative works defined as a work which “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” The Court found that Boldly did not alter Go with new expression, meaning, or message. Rather, Boldly merely repackaged the Go story into a new format featuring the Enterprise crew’s journey into a story shell already intricately illustrated by Dr. Seuss in Go. In particular, the illustrations were repackaged so that the Star Trek characters stepped into the shoes of Seussian characters in a Seussian world that is otherwise unchanged as shown in the illustrations above.
The Court also found that the creative nature of Go weighs against fair use. Further, Boldly copied about 60% of the Go book. ComicMix admittedly replicated as close as possible, the exact composition and particular arrangements of elements in the illustrations of Go. Thus, the Court found ComicMix copied a substantial portion of Go which weighs against fair use. In light of the foregoing, the Court found all four factors weighed against fair use. Accordingly, ComicMix cannot sustain a fair use defense.
This case was a win for copyright holders. It exemplifies that one cannot copy substantial portions of copyrighted material claiming fair use under parody when the offending work does not critique or comment on the original work.
A parody is a new work by an author that uses some elements of a different author’s work and critiques or comments on that different author’s work.
Yes. If the mashup critiques or comments on the original work it can be a parody.