Dr. Seuss Enterprises doesn’t want ComicMix LLC to publish Oh, The Places You’ll Boldly Go!, which borrows elements from Dr. Seuss’s iconic children’s books without paying a licensing fee for the privilege.
In a lawsuit filed in federal court earlier this month, Dr. Seuss Enterprises alleges copyright infringement, trademark infringement, and unfair competition against ComicMix and others involved in the project. According to the complaint, the allegedly infringing work is a mixture of Star Trek and several of Dr. Seuss’s books, including Oh, The Places You’ll Go!, Horton Hears a Who, How the Grinch Stole Christmas, The Lorax, and The Sneetches and Other Stories.
ComicMix knew a lawsuit like this one might happen, stating on their Kickstarter campaign (according to the Complaint, which is available here):
While we firmly believe that our parody, created with love and affection, fully falls within the boundary of fair use, 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.
We’ll see what those “people in black robes” decide. If I were one of them, I’d say Oh, The Places You’ll Boldly Go! is clearly a parody that falls into the “fair use” exception to copyright infringement.
Excerpts of Oh, The Places You’ll Boldly Go! appear in Dr. Seuss Enterprises’s Complaint, including:
Under American copyright law, an author’s estate has the exclusive right to a deceased author’s works for many decades after the author’s death. Seuss died in 1991, hence the rise of Dr. Seuss Enterprises to posthumously make money off of his works. A derivative work like Oh, The Places You’ll Boldly Go! is not infringement if it’s “fair use,” which involves four factors:
(1) the “purpose and character of the use” (is it educational? Is it commercial? Is it transformative?);
(2) “the nature of the copyrighted work;”
(3) “the amount and substantiality of the portion” of the original worked used;
(4) the impact of the use on the original work’s market.
Copyright Act, 17. U.S.C. § 107.
Based on the excerpts in the Complaint, Oh, The Places You’ll Boldly Go! is a transformative work that meets the definition of a “parody.” According to the United States Supreme Court, quoting the American Heritage Dictionary, a parody is a “literary or artistic work that imitates the characteristic style of an author or a work for comic effect or ridicule.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (holding that a commercial parody may fall into the “fair use” exception to copyright infringement).
Who would confuse Oh, The Places You’ll Boldly Go! with any of Dr. Seuss’s original books? No one.
Would Oh, The Places You’ll Boldly Go! reduce Dr. Seuss’s marketability? Probably not. If anything, parodies like Oh, The Places You’ll Boldly Go! increase the marketability of the original stories because they encourage people to revisit them.
In this case, it’s hard to see how Oh, The Places You’ll Boldly Go! harms Dr. Seuss Enterprises. They assert that they’re missing out on a licensing fee opportunity, but a derivative project might not happen at all if the authors have to pay a toll for the privilege of borrowing elements from a previous work for the purpose of parody. Instead, by filing this lawsuit through their DLA Piper lawyers, Dr. Seuss Enterprises is using the court system to squelch creativity in the arts, which is the exact opposite of what copyright law aims to accomplish.
My other half, Mr. AMB, summed up Dr. Seuss Enterprises’s litigious behavior in his own parody of Dr. Seuss’s rhyming style:
Oh, the people you’ll sue! There is pain to be done!
There are artists to be gored. There are claims to be won.
And the magical things you can do with a corporate lawyer
will make you the free expression destroyer.
Rich! You’ll be as rich as grave robbers can be,
with social media trashing your brand with glee.
For me, it’s this unnecessary lawsuit — not the allegedly infringing work — that detracts from Dr. Seuss’s legacy. I’m less likely to share his books with the children in my life now.