Pandemic gives fans a rare glimpse into a FAIR USE courtroom hearing!

In the summer of 2016 when the AXANAR infringement lawsuit was still in full swing, I drove to the Federal Courthouse in downtown Los Angeles to attend a hearing of the Ninth Circuit in that case. I was the only guest in the “audience” and the only person in the courtroom other than the clerk who didn’t have a law degree!

Nearly all legal proceedings in America are open to the general public, but few citizens avail themselves of this right because—for non-lawyers and non-participants—most of these proceedings are nigh incomprehensible and boring.

But I was personally invested in the Axanar case and found the hearing absolutely fascinating! In fact, I suspect that, had more Axanar supporters lived close to downtown L.A. and didn’t have work commitments, they would have flocked to watch the trial…had the case not settled.

Now the COVID-19 pandemic has offered a unique opportunity to watch Federal Court hearings remotely. The judges and lawyers are all working from separate locations and dialing into a video conference, and those proceedings are being broadcast live to YouTube so the public can observe. The conference videos are also being recorded and kept available on YouTube. Nothing like this has ever happened before! [CORRECTION – Oops, got that one wrong. Then Ninth Circuit (and possibly some other courts) has been streaming oral arguments since 2014.]

As many of you know, I’ve been closely following the infringement lawsuit where DR. SEUSS ENTERPRISES (DSE) has sued COMICMIX and author DAVID GERROLD, artist TY TEMPLETON, and publisher GLENN HAUMAN for violating DSE’s copyright in trying to publish Oh, The Places You’ll Boldly Go! mashing up Star Trek and Dr. Seuss.

Long story short: DSE lost. (Long story long: read this.)

With a pre-trial summary judgment, Judge JANIS SAMMARTINO ruled that “Boldly” (as it was shortened) qualified for First Amendment protection on the doctrine of Fair Use. That was in March of 2019. In August, DSE filed an appeal of that decision. (And here’s a blog explaining that in detail.)

The thing about an appeal is that you can’t just say, “Hey, we didn’t like that verdict, so we want a do-over with a new judge!” Nope, you can only appeal if you feel the first judge made a mistake in interpreting or applying the law in some way (other than just deciding against you.)

In DSE’s case, the biggest mistake they felt was made by Judge Sammartino was in determining that they (DSE) had to prove that they would suffer financial harm if Boldly were to be published and sold. DSE felt that ComicMix should have had to prove that DSE would not be injured by the mash-up. But because the district judge reversed the direction of burden of proof, and DSE failed to meet that burden, they lost and Boldly was ruled Fair Use. (DSE also felt that Boldly wasn’t transformative and also used too much of the original Dr. Seuss source material, which they contend should overturn any Fair Use ruling.)

Continue reading “Pandemic gives fans a rare glimpse into a FAIR USE courtroom hearing!”

COSPLAY FAN brings a proposed CLASS ACTION LAWSUIT for FRAUD against CBS, DISNEY, NBC Universal, and ANOVOS!

At first glance, it seems almost ridiculous. Most fans know that ANOVOS, a licensee that produces ultra-high quality cosplay props and costumes for Star Trek, Star Wars, Battlestar Galactica, and other genre franchises, has a well-earned reputation for taking a looooooong time to fulfill their pre-orders. And when I say “long time,” I’m often talking years!

But the wait is usually worth it. The Anovos replicas look amazing, many uniforms are custom-tailored for each individual who orders one, and all are officially licensed to look nearly identical to what has appeared on screen. While some fans complain about the long wait times—to both Anovos and to the licensors—others just seem to grin and bear it. In a number of cases, fans have learned from frustrated experiences not to pre-order new items and instead wait until they are listed as “in stock.”

But one fan, RICHARD DALTON from Louisiana, apparently didn’t get the memo about avoiding pre-order items and—over a nearly three-year period—pre-ordered 49 different items ranging in price from $10 pennants to a $9,000 starship model…for a total in excess of $40,000! Now Mr. Dalton is suing in California federal court (you can read the entire complaint here). The reason for the lawsuit is that none of the pre-order items was ever shipped, and Anovos has refused to refund any of his $40,000.

Some of you are probably thinking, “Serves him right for not getting the hint sooner! Caveat emptor…let the buyer beware!” True, there’s a certain amount of “fool me twice, shame on me…” lack of sympathy that some fans might cynically be feeling. And of course, Anovos does state on the pre-order pages: “All items are subject to change in availability, features, and delivery dates at any time and for any reason.”

But should that one blanket disclaimer get Anovos completely off the hook? Just because poor Richard was naive enough to believe that a licensed vendor would actually deliver merchandise in under three years(!!!) after being paid in full, should he be penalized for that innocent faith? If Anovos took advantage of Richard’s (and others’) trusting natures, why should it be only the customers who come out on the losing end? Shouldn’t Anovos face some consequences, too?

This case is germane to fan films because one of the the guidelines states:

4. If the fan production uses commercially-available Star Trek uniforms, accessories, toys and props, these items must be official merchandise and not bootleg items or imitations of such commercially available products.

Anovos uniforms are, in fact, official merchandise…and so the outcome of this lawsuit could conceivably affect Star Trek fan films. This is especially true because Mr. Dalton isn’t suing only Anovos; he is also suing CBS and Disney and NBC Universal for continuing to renew Anovos’ licenses for their intellectual propertiues despite being well aware of consumer complaints and possible fraud, breach of contract, misrepresentation, and unfair enrichment.

Let’s take a closer look at all of this…

Continue reading “COSPLAY FAN brings a proposed CLASS ACTION LAWSUIT for FRAUD against CBS, DISNEY, NBC Universal, and ANOVOS!”

Take that, DR. SEUSS; TREK MASH-UP is legally FAIR USE!

I’ve been watching this case closely for nearly two years, fascinated by the question of whether a”mash-up” of two separate intellectual properties (in this case STAR TREK and DR. SEUSS) could be successfully defended against a copyright infringement lawsuit using a defense of FAIR USE.

And yesterday, we discovered that the answer is officially “YES.”

For a more complete history of this case, check out any of my previous 15 blogs on the subject (I told you I was watching it closely!). In short, DAVID GERROLD (the creator of the tribbles) and TY TEMPLETON (award-winning comic book artist) set out to create a Seuss/Trek mash-up book called Oh, the Places You’ll Boldly Go!

Together with their publisher ComicMix, they set up a Kickstarter in late 2016 to fund a run of 5,000 printed copies of the book to sell through ThinkGeek. They raised about $30,000 when Dr. Seuss Enterprises (DSE) contacted Kickstarter with a DMCA takedown notice. The money was never collected.

Six weeks later, DSE sued the mash-up team for both copyright and trademark infringement. The case was an emotional rollercoaster ride for both sides, with the judge at one point dismissing the trademark claims and then later (after a re-refiling by DSE) reinstating the trademark claims.

On the copyright complaint side of things (different than trademark), the judge was ready to dismiss the case outright on grounds of Fair Use, but she gave DSE one chance to prove market harm by Team Mash-up. DSE was able to make a strong enough argument for financial damages that the judge allowed the case to move forward. That was 14 months ago.

The case has been complex, to say the least! And it had the potential, according to Ninth Circuit Federal Judge Hon. JANIS SAMMARTINO, to quite literally determine the fate of nearly all mash-ups well into the future. Would this new art form die in its infancy? Was it even a true art form? All of her rulings were carefully considered, and nothing was rushed.

After more than two years of legal wrangling, filings, responses, discovery and evidence and testimony, and motions for summary judgement, it all came down to pre-trial oral arguments made in Judge Sammartino’s San Diego Courtroom five weeks ago on February 7.

So what exactly happened, and is this case finally over…?

Continue reading “Take that, DR. SEUSS; TREK MASH-UP is legally FAIR USE!”

NO TRUCE with DR. SEUSS on FAIR USE! (Part 2)

Yesterday, I updated you that on Thursday at 1:30pm Pacific Time, the two parties in the DR. SEUSS/STAR TREK mash-up lawsuit will meet in Federal Court in San Diego, CA. The original complaint was filed more than two years ago, and after countless motions, discovery, and an emotional rollercoaster of rulings from the judge, this hearing is likely the last time the two parties will appear before the judge until the trial begins.

Assuming there is a trial.

Barring a surprise last-minute settlement (which, I think, is highly unlikely), Thursday’s hearing could very well result in either the case being dismissed by the judge or else sticking a knife into the defense team to make the lawsuit all-but-impossible to win.

But assuming the case goes before a jury, and if I were a a juror, what argument(s) would be most likely to persuade me that Oh, The Places You’ll Boldly Go! deserves the freedom to be published?

For me, there was one thing that was mentioned—only very briefly by the defense attorney in a previous filing—that in my opinion would weigh most strongly on me as a juror. It was a surprisingly simple question:

What exactly should the defendants have licensed?

Think about it. If the book had been The Cat in the Hat Knows a Lot About Star Trek, then the answer is straightforward: they’d license The Cat in the Hat. If their story was Mr. Spock Meets the Grinch, then they’d license the Grinch, Max, and maybe Cindy Loo Who. But which Dr, Seuss character did David Gerrold, Ty Templeton, and ComicMix use without permission?

The best that the plaintiffs could come up with is the “boy” (their word) who appears on the cover and throughout the original Go! book. However, as with other characters in the Boldly book, this “boy” has been transformed. He wears a TOS command tunic and black pants instead of pajamas. Is that still the same character? The two Zaxes were turned into Spocks. The guy with the Sneeches’ star-machine was turned into Scotty with a transporter.

When does a copyrighted character get changed enough that he becomes a new creation? It’s an intriguing question!

Continue reading “NO TRUCE with DR. SEUSS on FAIR USE! (Part 2)”

NO TRUCE with DR. SEUSS on FAIR USE! (Part 1)

This Thursday at 1:30pm Pacific Time, the two sides in the ground-breaking DR. SEUSS/STAR TREK mash-up lawsuit will meet in front of Ninth Circuit Federal Judge HON. JANIS L. SAMMARTINO in courtroom 4D of the Edward J. Schwartz Courthouse in San Diego, California.

Last month, I reported the hearing date as January 31. But the lawyer for the defense caught the flu and requested, and was granted, a one-week delay (which is not all that unusual).

In a previous blog, I discussed the history of the case, and what each side is asking the judge to do. In short, the defense wants the judge to end the case before it begins next month…in favor of the defense, of course. This would mean her ruling that their mash-up Oh, The Places You’ll Boldly Go! should be considered (as a matter of law) to be FAIR USE and therefore protected speech. Therefore, any copyright claims would be nullified, and Team Mash-up (DAVID GERROLD, TY TEMPLETON, and their publisher COMICMIX) would be free to publish their book without legal liability. Also, the defense wants the remaining two claims of trademark infringement (different than copyright) dismissed because it is not reasonable to trademark an artistic “style” nor the look of a typographic font.

The plaintiffs, DR. SEUSS ENTERPRISES (DSE), are trying instead to convince the judge in this case to do the same thing that was done in the AXANAR lawsuit: declare that the mash-up is not Fair Use and, therefore, cannot be defended as such. Likewise, they want the judge to rule that, yes, it is reasonable to hold a trademark on an artistic style and a font. This wouldn’t necessarily end the case (unlike the defense motion,) but a favorable summary ruling by the judge would make the lawsuit all but unwinnable for the defense…as happened previously with Axanar.

So why have I given this case so much attention?

Continue reading “NO TRUCE with DR. SEUSS on FAIR USE! (Part 1)”

Major FAIR USE showdown coming in DR. SEUSS/STAR TREK copyright lawsuit! (part 2)

Yesterday, I recounted the two-year history of Star Trek‘s “other” major infringement lawsuit. Back in 2016, tribble creator DAVID GERROLD and comic book artist TY TEMPLETON teamed up to create what they considered to be a parody mash-up of Star Trek and Dr. Seuss, a book they intended to call Oh, the Places You’ll Boldly Go! Along with publisher ComicMix, they launched a Kickstarter which took in about $30,000 before being shut down when Dr. Seuss Enterprises (DSE) sued all three of them for both copyright and trademark infringement. No money was ever collected from the crowd-funding campaign.

It’s just over two years later, and after a roller coaster ride for both plaintiff and defendants (see Part 1), we’re now in the final weeks before the start of the actual trial in early spring.

Or are we?

Following long months of motion-filing, jockeying for position with Judge JANIS SAMMARTINO of the Federal Ninth Circuit, and collecting pre-trial testimony and documents from witnesses during the discovery phase, it’s time for one final “Hail Mary” pass from each side.

Yesterday, I reviewed the defense team’s motion to dismiss the case (read it here in its entirety) on the grounds that DSE didn’t really prove any realistic monetary damages (meaning that the mash-up should be considered as Fair Use and the complaint dismissed) and also that DSE’s remaining two trademark claims from font and art style weren’t valid. The defense arguments were solid and generally convincing…at least to me.

But then I read through the plaintiff’s motion for summary judgment. Like the defense team, DSE would like this case to end before it ever goes to court (and they rack up another six figures in legal bills!). But while Team Mash-up wants the judge to dismiss the lawsuit entirely, DSE would prefer the judge to rule that the defendants are obviously liable for multiple counts of willful copyright and trademark infringement and should be forced to pay hundreds of thousands of dollars in damages. And why trouble a jury when the final verdict is so obvious?

Are the plaintiffs as convincing as the defendants? Let’s take a look…

Continue reading “Major FAIR USE showdown coming in DR. SEUSS/STAR TREK copyright lawsuit! (part 2)”

Major FAIR USE showdown coming in DR. SEUSS/STAR TREK copyright lawsuit! (part 1)

Many Fans down in Fanville like mash-ups a lot.
But Dr. Seuss Enterprises, or DSE for short, did not.

DSE owns the rights, it isn’t in question,
to the late Dr. Seuss’ entire literary collection.

So when David Gerrold, the man who created the tribbles,
tried to mix Seuss and Star Trek, DSE had their quibbles.

In fact, they filed a federal suit,
for infringement of copyright…and trademark, to boot!

The defendants were Gerrold and his artist, Ty Templeton.
They also named the publisher, to add to their fun.

The publisher’s name, by the way, was ComicMix,
and if you ask me, DSE is a real bunch of…

Okay, I’m going to stop blogging in rhyme now.  Instead, let me tell you about some major developments in the Dr. Seuss/Star Trek mash-up lawsuit.  On December 11, both the plaintiff and defendants filed 20-page briefs (memoranda) supporting their latest motions before the judge.  A hearing is scheduled for January 31 at 1:30pm in the San Diego courtroom of  Hon. Janis L. Sammaritno, federal judge on the Ninth Circuit (the same circuit that had jurisdiction in the Axanar lawsuit, although a different judge than Axanar had).

Judge Sammartino’s rulings on these pre-trial motions could affect this case in VERY significant ways.  If she grants the defense motion for summary dismissal, the case could be over or potentially cut off at the knees for the plaintiffs.  On the other hand, if she grants the plaintiff’s motion, “Team Mash-up” (as I like to call them) could lose before ever going before a jury.  The stakes are as high as they’ve ever been.

As usual, I’m happy to break this down from legalese to English for those who want to know the score…

Continue reading “Major FAIR USE showdown coming in DR. SEUSS/STAR TREK copyright lawsuit! (part 1)”

Oh, the answers I boldly got…about the DR. SEUSS/STAR TREK mash-up! (interview with GLENN HAUMAN)

Have you ever given a few bucks to a street performer?  Maybe it was a guy juggling bowling balls while riding a 10-foot high unicycle…or a woman playing seven different musical instruments at the same time.  The reason you might drop a few coins or dollars into their hat is that these folks entertain you.  They’re talented, and they use those skills to bring some fun and joy into your day…and maybe show you something you probably don’t get to see very often (if ever).

What does any of this have to do with the proposed Oh, the Places You’ll Boldly Go! illustrated book mashing up Star Trek with Dr. Seuss?  As you probably know, an infringement lawsuit was filed by Dr. Seuss Enterprises (DSE) against creators DAVID GERROLD, TY TEMPLETON, and ComicMix, which intended to publish the book.  (To learn more about the lawsuit, read my latest update from a couple of weeks ago.)  Recently, ComicMix launched a GoFundMe campaign to raise money to help pay the costs for their legal defense.

Obviously, the goal of Oh, the Places You’ll Boldly Go! is to bring some joy and fun into YOUR day…entertainment for Trek fans that will certainly never happen if the verdict in this lawsuit goes against ComicMix and “Team Mash-up.”  But to make things even more entertaining, ComicMix’s own GLENN HAUMAN wrote the whole GoFundMe description ENTIRELY IN RHYME.  (Seriously, check it out…it’s pretty amazing!)

But Glenn’s not done rhyming yet…!

Continue reading “Oh, the answers I boldly got…about the DR. SEUSS/STAR TREK mash-up! (interview with GLENN HAUMAN)”

Has the STAR TREK/DR. SEUSS mash-up lawsuit become a CHESS GAME? (update)

Last time, I discussed the new GoFundMe campaign implemented by ComicMix, LLC to assist in paying legal fees associated with an infringement lawsuit filed by Dr. Seuss Enterprises (DSE) back in late 2016.  The lawsuit has been a very active one, with 13 notices, 14 motions, 7 responses, 6 replies, 28 judicial orders, and 1 amended complaint (so far)…and the date of trial isn’t until next spring!  The lawyers on both sides have been VERY busy…which is mainly why this lawsuit is costing so much.

Things are going well for both sides at the moment, and it’s far from clear how this lawsuit will turn out once it goes in front of a jury (assuming it doesn’t settle, which isn’t looking likely at present…but who knows, right?)

Most recently, Hon. Judge Janis Samartino of the Ninth Circuit Federal Court in San Diego made two very significant rulings that will likely have a major impact on this case.  One was clearly a win for the defense (“Team Mash-up” as I call them) and was actually covered by The Hollywood Reporter (and other media outlets) two months ago with the headline: “‘Star Trek’/Dr. Seuss Mashup Creator Beats Trademark Claims.”  That made it almost sound like the case was over.  Not even close!  The “victory” by Team Mash-up was only partial, albeit important.  I’ll explain that shortly.

Then last month, another ruling came down striking 11 affirmative defense claims that Team Mash-up intended to use to argue their case.  That’s the legal equivalent of taking 11 arrows away from an archer going into battle who only has 37 arrows to begin with.  So this time, it was a victory for the plaintiff…although, again, only a partial one.

This lawsuit—a very important case  that could set a significant precedent in the emerging art form of the “mash-up”—has turned into a fascinating game of chess.  And as I’ve done before on this blog, I’d like to translate all the boring legalese into enjoyable English so you folks who are interested can get a layperson’s update on this fascinating case.

Continue reading “Has the STAR TREK/DR. SEUSS mash-up lawsuit become a CHESS GAME? (update)”

Oh, The Places You’ll Boldly GoFundMe!

Mash-up mess-up!  Seuss sues!  Tricky Trekkies find fans to fund!

…or at least that’s the short form of the story so far.  As I’ve covered in a series of blogs over the past year, copyright and trademark precedent is being made right under our very noses, and Star Trek is right smack dab in the middle of it!  But this time, it’s not a fan film in the thick of things but an unpublished attempt to mash-up Star Trek and Dr. Seuss into a fun (but allegedly not entirely allowable) illustrated book intended to be titled Oh, The Places You’ll Boldly Go!

Written by Star Trek‘s own DAVID GERROLD (creator of the tribbles) and illustrated by TY TEMPLETON (Eisner award-winning mainstream comic book artist), this project was going to be crowd-funded through Kickstarter and managed to raise $30,000 in September of 2016.  But Dr. Seuss Enterprises (DSE) asserted their intellectual property rights, and Kickstarter elected to shut down the campaign.  On November 10, DSE sued Gerrold, Templeton, and ComicMix (the company running the campaign) for both copyright and trademark infringement.

It’s now nearly two years later, and this case is nowhere near done.  In fact, the trial isn’t scheduled to begin until next spring, and the lawyers on both sides have been VERY busy (more on that tomorrow)!  But in the meantime, the legal bills are piling up.  This isn’t as much of a problem for DSE, which makes money every time someone buys Green Eggs and Ham or The Lorax, not to mention royalties on all the movie remakes of classic Seuss stories.  ComicMix, on the other hand, is a much smaller company…and apparently, their cash bucket isn’t nearly as deep.  And unfortunately, unlike a certain fan production we all remember, ComicMix didn’t find attorneys willing to work for free.

And so ComicMix has launched a GoFundMe campaign with a $25,000 goal.  So far, they’ve managed to get about 9% of the way there.

“Why is this worth donating to?” you ask.  I’ll tell you…

Continue reading “Oh, The Places You’ll Boldly GoFundMe!”