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?

I’ll freely admit, I’m rooting for the defendant…just as I rooted for Axanar back in 2016. It’s not that I don’t believe in copyrights. It’s simply that I also believe in the First Amendment, and I understand that intellectual property protections and free speech protections essentially negate each other…and there needs to be a middle ground where compromise happens. Such a middle ground is the concept behind Fair Use, and it has existed in the law since before even the birth of this nation nearly two and a half centuries ago.

Critical commentary is considered Fair Use, as are certain educational or journalistic purposes. And parody, as a form of critical commentary, is also considered Fair Use, as copyright holders are unlikely to grant permission to make fun of their original work. And the United States doesn’t want to step on the right of free expression when exercised in a way that encourages thought and discussion, which parody does.

Unfortunately for Team Mash-up, Boldly was NOT determined by the judge to qualify as parody, and the lawsuit was allowed to continue. So why do I think think is Fair Use and not simply two guys and a publisher “slavishly copying” the art and writing of a deceased author/illustrator whose works are owned by a California Limited Partnership?

There are four elements of Fair Use, but in this particular case, only two of them are critical as explained by the judge. The first element is that she ruled the mash-up as a transformative, not derivative, work…and it only copied enough to be recognizable as based on the original work. This limited copying was necessary for Boldly to identify itself as a “mash-up” of Dr. Seuss and Star Trek, and therefore, it needed recognizable elements from both properties to transform the old into something unique and new…or so the judge ruled.

The other point in question is whether Boldly will cause financial harm to DSE (once the Mash-up book is published, that is). DSE says “yes.” More specifically, they say that they’ve licensed their intellectual property to multiple creators to pair up Dr. Seuss characters with other characters and concepts. By circumventing or simply ignoring the licensing process, DSE says, Team Mash-up was creating the impression that others could do it, as well. And that would mean lost licensing revenue down the line.

DSE also feels that Boldly would appeal to some of the same types of people who buy the original Oh, the Places You’ll Go!  It’s not simply a children’s book; it’s often given to students as a graduation gift. Apparently, according to DSE’s filings, ComicMix was intending to market this book to graduates and/or their parents/friends. (ComicMix denies this, by the way, pointing to their initial plans to publish in time for Christmas, not in the late spring for graduation.)

The two sides went back and fourth in a series of filings. They’re waaaaay too long to summarize (I thought I could, but that would have been a ten-part blog!). But if you’d like to read them (they’re fascinating…albeit somewhat dry), here they are…

• Defendants’ Filing making a Motion for Dismissal
• Plaintiff’s Opposition to the Defense Filing
  
• Defendants’ Reply to the Plaintiff’s Opposition

• Plaintiff’s filing making a Motion for Summary Judgment
• Defendant’s Opposition to the Plaintiff’s Filing
• Plaintiff’s reply to the Defendant’s Opposition

Yep, that’s a LOT of filings…all submitted within about five weeks! Each side made a pre-trial motion to the judge, the other side was allowed to write an opposition to the motion, and then the first side gets to write a short reply. Welcome to the U.S. legal system.

I really do recommend you at least skim them, as each side completely convinces you they’re right…until you read the next filing. I am so glad I am not a judge!

But what if I were a juror? What argument(s) would most persuade me that Boldly is Fair Use? Come back tomorrow to find out!