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!

In one of their filings, the plaintiffs bring up the fact that DSE has very strict style guides that licenses must follow. If a licensee doesn’t do so, their product won’t be approved. (Most licensors, including CBS, have similar guidelines for their properties.)

Team Mash-up most certainly didn’t follow these strict guidelines—they weren’t licensees. And so, despite “slavishly copying,” they nevertheless managed to come up with characters that are far from identical to the Seuss characters. Spock is not a Zax. Sulu is not a Sneech. So what exactly was copied? An artistic “style”? Then the question becomes: can you own an artistic style? And even if you can, that would be a trademark, not a copyright…meaning artistic style would not be considered as relevant to the Fair Use defense, only the characters themselves. And it seems that none of those was copied.

One last item that I found interesting was a drawing provided in the Plaintiff’s Opposition on Page 9. Take a look…

What in Whoville is that??? Well, the images on the left are original drawings from Boldly. The two on the right were created by an artist hired by DSE specifically to recreate both images using nothing that would infringe on their intellectual property—different characters, different font, different art style.

DSE used the above images in a focus group, asking random people: “Who do you think created, sponsored, and endorsed this book?” 39.7% of the test group that was shown Boldly registered as “confused” as to source (whether or not it was Dr. Seuss). However, of those shown the redrawn artwork (with the exact same text), only 15.7% were confused. The filing then goes on to conclude that “the illustration style and font of Boldly creates a substantial likelihood of confusion with respect to Dr. Seuss.”

Now, the judge had already ruled on the whole confusion thing previously, deciding that the disclaimer on the inside cover was sufficient enough to inform consumers that Boldly is NOT sponsored or endorsed by DSE. So that argument is, to me at least, essentially a red herring. Likewise, when I go to the store (or, in this this case, online to the ThinkGeek website) and see a mash-up of Star Trek and Dr. Seuss, I am not going to base my decision to buy it on whether or not it is licensed. I doubt it matters much to most other people either.

But let’s imagine that it did matter. Then, if anything, the perceived endorsement (or lack thereof) would likely only affect my decision of whether or not to buy Boldly, not whether or not I buy other Dr. Seuss books for my son or his friends or people who graduate. Whether or not I decide to get McDonalds for lunch doesn’t really affect what I have for dinner. So in this way, the whole “confusion” thing, for me at least if I were a juror, lacks merit.

What does resonate for me, however, is that 20% difference in “confusion” (about whether it was Dr. Seuss) for people who were shown the redrawn artwork. Y’see, the whole idea of a mash-up, like a parody, is that it almost by definition needs to be recognizably mashing up two identifiable things in order to be effective. For example, take a look at this brilliant music video mashing up (you’re not gonna believe it till you see it!) Ozzy Osbourne and Earth, Wind, and Fire…

Now imagine being told, “Okay, you can do your mash-up, but you need to take out all of the parts where Ozzy is singing Crazy Train and replace them with other music that doesn’t sound anything like the original.” That would effectively eliminate the effectiveness of the music video.

The thing about free speech is that it’s supposed to be free, not semi-controlled. I’d wager that telling American citizens, “You can say whatever you want as long as this is HOW you say it…” isn’t exactly what James Madison and the Founding Parents had in mind. But isn’t that precisely what DSE is telling Team Mash-up to do? You can still make your mash-up book, just take out anything that makes it look like you’re mashing up OUR intellectual property. And yet, that’s the whole point of the mash-up!

And that brings us to my concluding thoughts before everyone heads into the courtroom on Thursday…

We know that parody is protected speech, protected by Fair Use because it’s unlikely that any rights holder would grant permission for their work to be criticized or ridiculed, and our nation wants to protect that form of free expression and (potentially) disagreement.

But might a mash-up also be considered free expression? After all, a mash-up is not entirely a direct copy. If a judge rules the mash-up to be transformative enough (not simply derivative), then the copyrighted source work is only a piece of puzzle that has been assembled into something fresh and new…something that gets its message across specifically BECAUSE it combines the familiar…much like parody also requires familiarity with the original to be most effective.

For 200 years of the First Amendment and Fair Use, parody existed, but mash-ups did not. Those are a more recent creation of our evolving culture. But doesn’t the law itself need to evolve along with society? Just 50 years ago, Americans didn’t have personal computers. Barely 25 years ago, desktop video sprang into existence. Downloadable music, smartphones, Skype, Facebook, Twitter…the modern age moves much faster than the law.

But isn’t it time for the law to catch up…at least a little? Isn’t it time for mash-ups to be considered as a form of parody?

It’s a fascinating question, and one that I, were I a juror (which I won’t be because I don’t live in San Diego and because I just wrote this rather biassed and disqualifying blog!), would be very careful to consider.

This is actually one of the most significant intellectual property court cases to come around in a long time and could well determine the fate of mash-ups—perhaps forever. Judge Sammartino is well aware of this and wrote the following early on…

This case presents an important question regarding the emerging ‘mash-up’ culture where artists combine two independent works in a new and unique way. … Applying the fair use factors in the manner Plaintiff outlines would almost always preclude a finding of fair use under these circumstances. However, if fair use was not viable in a case such as this, an entire body of highly creative work would be effectively foreclosed.

And those are my last words, at least for right now.
I’m sorry they weren’t that short.
But I wanted to tell you the what, where, and how.
The next stop is Federal Court!

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

  1. I’m reminded of a story (which is probably apocryphal) I heard, back in the mid 90s, about how bright young thing in the Paramount legal department sent a politely worded letter to the US Navy Chief of Naval Operations broadly saying “USS Enterprise is a copyrighted trademark of Paramount Pictures. You owe us money.”

    After the CNO had had a good laugh, he sent back an equally polite letter to the effect of “There has been a USS Enterprise for far longer than there has been a Paramount Pictures. If anything *you* owe *us* money.”

    1. I’ve heard that story, and I don’t think it’s true. But it is funny.

      Did you know that it’s free to use any intellectual property owned by the United States…at least if you’re a taxpaying citizen (or will be). All those beautiful NASA photos…use them to your heart’s content. They’re free! And so is the name USS Enterprise (at least on the government end).

      1. It’s funny you should mention NASA photos.

        Way back in the late 90s, there was a guy who would get a dealers table at the Scottish Star Trek cons in Glasgow (I don’t remember his name unfortunately), but his “thing” was a series of beautiful paintings on glass, of various Star Trek ships, against a background of a real nebula – which he had apparently copied from images taken from the Hubble telescope.

        As you can imagine, the paintings were quite pricey, often running to three and sometimes four figures.

        From what I remember, on the Saturday morning of the 2001 convention, he just suddenly closed his order book, refunded any downpayments, sold off his display pieces for peanuts, and walked out, never to be seen or heard from again.

        Later, I was told by a member of the committee that a lawyer representing Paramount had shown up and hit the guy with a Cease and Desist order, and that he’d decided it just wasn’t worth the stress trying to fight it.

        As we now all know, fan made *anything* can be a tricky business.

        US laws are different to English laws, which in turn are different in some respects to Scottish laws.

        1. I wouldn’t be surprised if Paramount asserted their rights in that instance.

          Do you want to know who one of the biggest “enforcers” ever of Paramount’s IP was at conventions? Majel Barrett Roddenberry. After TNG began and Gene was once again “in command,” Majel would often walk the floor at cons where she was a guest, looking for items on dealer tables that weren’t licensed or were bootlegged, especially cast photos that were captured from still images recorded off of episodes played on VHS (at the time) and later LaserDisc. Ironically, Majel and Gene’s company, Lincoln Enterprises, didn’t license their stuff. They had a special relationship with Viacom Consumer Products that was “tested” in the mid 1990s after Gene’s death. The outcome was a bit of a stalemate, and since then, Lincoln/Roddenberry have enjoyed a sort of detente.

          Anyway, just a little untold licensing lore from the filing cabinet of Jonathan’s memory. 🙂

    1. You are partially correct, Barbara. However, when the law is brought in (especially in Federal courtrooms) to adjudicate the issue of Fair Use, the First Amendment is always a consideration…as is copyright/trademark protection. They are constantly at odds. So when ruling, the judge and/or jury have to keep both concepts in mind as they weigh the question of just how much freedom of expression is allowed when part of that expression is the intellectual property of another.

      This is by far not an open-and-shut case, and it could very well go in either direction. I’m rooting for Team Mash-up, as I said, but I am far from confident they they will win.

  2. This affair is somewhat strange to me since I do not know Dr Seuss contents, I never heard of it before it came on FFF.
    Well, as it happens to be, I won’t even try to know more about their books but I guess some ST fans would. So, should DSE ask for an arrangement with Team Mash-up about the license requirements, they would get some profit for almost no work !
    For the equivalent, and probably for less actually, they should have spent some time on discussing for a win-win scenario.
    The future of Mash-ups is effectively linked to what will happen in court. The wisdom would be to settle with an intermediate form of license. This is where it is similar to the Axanar case: had CBS the will to look at fanfilms as potential intermediate licensees, now they would have a little stream of revenues. I say it again, it is bad business practice to refuse money because it does not fit the usual license terms. What are negociations for ?
    All this is just a terrible waste of money for both camps. Were I a juror, I would sentence all those who waste court’s time and money because of their inability to TALK !

    1. Dr. Seuss is a VERY well known and beloved children’s author who wrote dozens and dozens of beloved children’s stories that are read to countless youngsters each day and night. But since they are all written in rhyming English, they probably won’t translate as well into French and other languages.

      Interestingly, like science fiction writers, Dr. Seuss often took social and political issues of the day and “hid” them inside of fun and seemingly non-political stories with lessons to be taught. Certain books and stories were more obviously than others. “The Lorax” is a not-so-thinly masked warning about not protecting the earth’s natural resources. The Sneeches were the victims of racism and intolerance (initially Jews, but also applicable to blacks or any number of oppressed ethnic, racial, or or religious minorities). The north and south-going Zax were the U.S. and Soviet Union meeting in Korea. Yertle the Turtle was Hitler. Marvin K. Mooney (“Would you please go now?”) was Richard M. Nixon. Horton hearing a Who was the result of Dr. Seuss (Theodore Geisel) visiting Japan in 1953 and seeing the horrifying aftermath of the atomic bombs dropped on Hiroshima and Nagasaki. “The Butter Battle Book” was about the nuclear arms race.

      Don’t believe me, folks? Look it up! 🙂

        1. Sometimes a cigar is just a cigar, Ronnie. Although Dr. Seuss never fathered any children of his own (and his step-daughters were sent away to boarding school when he married his second wife Audrey), he was well aware of what children could be like…including being finicky eaters. 🙂

      1. Well, they made a pretty decent effort keeping it rhymed when they translated the old animated TV special of “How The Grinch Stole Christmas” into Latin American Spanish as “Cómo Odeón se robó la Navidad”. They used to broadcast it (almost) every Christmas back then when I was a child. Search for the title on Google and you may find it… (they didn’t translate the songs, though)

  3. Thanks for the explanations Jonathan.
    So, if the Dr Seuss stories were so charged with political meanings, is it wise to use it for a ST story. And for instance, what is the story behind this particular one ?
    Back on the lawsuit, the jury would have a delicate decision to make. The risk is that if they grant mash-ups for fair use or other reason, there could be abuse later on for other projects and it would be very difficult for the industry to know where is the line. As the system is mostly protective of the business, I am afraid a court ruling would be a lose-lose one. I may seem insistant but if owners considered intermediate licensing, all these lawsuits could be avoided in a profitable maneer for everyone. We, French, are too stupid to understand that but I am surprised that all-trading Americans don’t either. Intermediate licensing is a potential market segment between full professional business profit production and full non-profit volunteer amateur ones. Since it is easy to categorize the submitted projects, owners could evaluate them and keep in control as well as taking easy money. On the other hand, fan producers would work peacefully knowing they won’t be sued anytime and would be ready to pay for it. I don’t remember reading anywhere that fan producers ever refused to submit on licensing by principle. Only the money and specific constraints are the real obstacle and there is no reason a reasonable solution could not be found.
    But of course, it would require peoples thinking and talking before striking. All the examples mentioned started with instant C&D letter without prior any discussion. This should only happen after a negociation has failed and the project maintained. The current practice is a bad shortcut that only leads to expensive and avoidable lawsuits.
    Question: are there examples where owners and fan producers have good relationship thanks to smart negociation ?

    1. There’s a common misconception out there about licensing a property. Many think that an interested licensee goes to a copyright owner with an idea, the owner likes it, gives their blessing to go make it, and then they both split the profits.

      The reality isn’t even close to that.

      Depending on the copyright owner, there is almost always a licensing fee paid up front, and the bigger/more valuable the property, the larger the up front payment. For Star Trek, at least back in the 1990s when I worked for Viacom Consumer Producers, the upfront licensing fees were usually somewhere between $50K and $150K…plus a percentage of the generated revenue negotiated based on expected profit margin (usually between 15% and 50% of net profits).

      The up front payment was not just a frivolous arbitrary money-grab. Although it did serve to separate the “real” licensees from those who simply had a cool idea and no idea how to create a business plan and manufacture, market, and distribute a profit, the up front payment had a second, more important purpose. You see, almost no licensee is allowed to simply go off on their own and develop their product their way with no oversight. This is one of the reasons why fan films will never be licensed…because the time requirements are too great and a fan film license could easily cost $250K just to cover the man hours necessary to oversee all aspects of pre-production, production, and post-production. The people in licensing are paid to be “at the service” of licensees, reviewing proposals and diagrams and mock-ups, etc. They need to be available for meetings and to answer questions when the phone rings or an e-mail comes in. Their salaries and resource costs (work space, office materials, etc.) are paid by the licensing fees. At one point, for seven years, licensing fees covered my time at $20/hour for sometimes several hundred hours per year, and I was just a part-time freelance consultant.

      My guess is that DSE would charge similar fees for licensing their characters. So assume that Team Mash-up would have needed to pay about $100K up front just to start a long process of developmental reviews and critical change requests that would have increased Ty Templeton’s illustration time immensely. And remember that Ty was working for free for expected royalties on the back0-end. Who would have come up with that $100K? David Gerrold and Ty Templeton didn’t have it. ComicMix didn’t have it. Heck, their Kickstarter only reached $30K after a month. So it’s doubtful Team Mash-up could have even gotten in the door of one company, let alone both. And DSE would never agree to anything unless CBS were on board first. And CBS wouldn’t agree unless DSE were on board first. So it’s unlikely it would have gone anywhere anyway.

      This is one of the reasons mash-ups almost never happen as official licensed products. Sure, you might see a Marvel/DC Comics crossover, but that’s usually when the two rights-holders license from each other directly without a third party involved. Or if you see a Star Wars character in a Disney movie (as happened recently in “Wreck-It Ralph 2”), it’s because one company owns both properties.

      So to answer your question: “…are there examples where owners and fan producers have good relationship thanks to smart negociation ?” Yes, but only up to a point. For the recent “Temporal Anomaly” fan film, Samuel Cockings didn’t “negotiate” with CBS so much as beg and plead. He was friendly, polite, and willing to say “How high?” whenever they said “Jump!” In fact, he asked them how high to jump and where to jump first, and they were nice enough to tell him. Their “requested” changes delayed his fan film release nearly one additional year. That’s another reason fan films will never be licensed. If you think Axanar is taking a long time–image what would happen if fan filmmakers had to wait for repeated reviews, feedback, and guidance from CBS Standards and Practices. Fan filmmakers enjoy a creative freedom few studio producers in Hollywood ever experience. That’s why so many filmmakers create independent films and then try to sell the completed production to a studio “as is.” But when dealing with an existing property like Star Trek (or Dr. Seuss), such creative developmental freedom would NEVER be granted.

      Sorry for the long-winded answer. I just wanted to make sure you and other readers understand how licensing works, and why Oh, the Places You’ll Boldly Go! would never have happened if Team Mash-up had approached DSE beforehand.

      1. Thanks a lot for this precise answer.
        What you explain is clearly structured as big business. But speaking of fan productions, we are dealing with a different universe. Small businesses must be treated so because scaling effects don’t fit the reality.
        Of course I do not believe that all fanfilms would be worth spending time on licensing, but some really are. Axanar , Continues, Phase 2 and renegades are some good examples that would desserve consideration.
        So what is licensing Majors are dealing with ? Making profit on specific properties with contents or derivative products which have to comply with specifications.
        What is licensing I am telling about ? The authorisation to use copyrighted material in a new way. A new business with new rules according to the level of activity. Small book publishing companies do that everyday and it works. Of course it is with far less famous material but the principle is valid.
        Concretely, there is a gap between the amateur garage productions and professional ones where lie some projects able to go farther the guidelines limitations. This void is just a nonsense. The simple fact to say “will never be licensed” is bad business practice that reveals lack of seeing opportunities. Also, we know that some projects leaders have met owners and got at least enough hearing and consideration not to be sued because someone took time to have a look at it.
        As we say by here, impossible not french, so I keep believing someting could be done.
        How many peoples would have been required to evaluate Axanar (which has proven its value and ability to fund and deliver) ? Is it really more expensive than the lawsuit has been ?

        And after all, none of the fanfilms ever asked to become an official production, it is absolutely not what it is about. It is just a question of being honestly accredited to use the property according to requirements. Guidelines are a form of requirements suitable for small projects but they led to a situation where intermediate level projects are in a dead end, hence my habit to speak of intermediate licensing. It is just a way to describe how to complete the dispositions for fans and owners to coexist peacefully. It is just a question of goodwill…

        1. The thing you should understand, Nicolas, is that anything CBS produces or endorses that is film or video must so through their Standards and Practices department. The process for doing so is tedious and grueling, even for those who are used to it. Like prostate exams and colonoscopies, though, they’re just something you’re forced to endure.

          However, fan filmmakers, even “professional” ones like Alec and Vic and Sky, don’t necessarily have the resources necessary to deal with the requirements of S&P, which can often involve expensive delays, re-writes, re-shoots, and re-edits. Also, as much as we think it would be easy for fan filmmakers to simply split the proceeds or (as Alec once offered) GIVE the finished product to CBS, things just don’t work that way. Ownership, royalties, expense tracking, union enforcement and verification…all of these things come into play.

          In the end, yes, the lawsuit cost CBS and Paramount a million dollars. But dealing with fan producers on a legal, professional, and business level–especially if things go wrong–could end up costing WAY more. It’s just not practical…which is why it doesn’t happen.

          1. Thanks a lot for taking time to answer as well as for the link.
            I understand the US market is far more difficult than the french one. We have an independant structure (CSA superior audiovisual council) to keep an eye on the respect of edicted rules, but thoses rules are far loosen than yours. In fact this only applies to what airs from the channels themselves. Producers remain owner of the contents and can choose to use a different way to broadcast under their own reponsability.
            So, there is not only one way to discuss of a project. Owners can say OK to a project that use their IP because they know ( and make sure) it will be limited to webcasting. Most are just happy that the project has been submitted properly. Sometimes they say no because it goes too far, still there is discussion prior to file a complaint.
            Our CSA scans what airs on TV and radio and it would require a really severe violation for it to move !
            Maybe the US mammoth is just too big to adapt itself to the scale of fanmade projects,and prefers to miss opportunities of good things. That’s just a pity because there are many examples for which the amateur status has no bad influence. I guess that S&P could have a look at some projects, but since they understand they could not charge them, they do not want to create a precedent that would be considered as unfair to regular project holder.
            That is why I never said owners should grant free licences but set different levels of requirements and different levels of fees if it allows the projects holders to get revenues from it to fund it.
            In small business, we can not do otherwise, we must adapt ourselves because we can not afford to miss an opportunity. As project holder, we must sometimes take some risks to work on a superior level. As owner we sometimes must accept to play a lower game to enter a new domain. And that is what it is all about: entering a new market.
            One of these days, some will ask themselves “why didn’t we do that earlier ?”…

            In the case of Axanar, what would have gone wrong ? Had CBS accepted to discuss first, they could ensure everything was OK at the beginning and save both money, time and reputation. It is tedious and grueling because they make it so. Any craftman has to make his tools to fit the job and TV channels are not different. It is just a question of will and the problem is they just never gave it a try. They so afraid to lose money on trying they actually lose some not trying. CBS did not even ask Alec Peters to go through the S&P process, they just sued him, so they are still very far from understanding what I try to explain (I admit I am probably not very clear).

            I do not know if books publishing has to comply with the same rules as TV shows but I am really surprised that DSE made the same mistake to sue Boldly Go without warning while they could easily discuss as responsible adults and find a friendly and profitable solution. What is this world where everyone sues everyone ? Life is already difficult, it is crazy to make it harder !!!

            Maybe someone, someday, will read this and try proper negociation…
            Anyway, thanks again Jonathan for this discussion.

          2. Unfortunately, Nicolas, I simply don’t have the time to explain why the world of intellectual property and fan filmmaking can’t be the way you wish it to be. Suffice it to say, if it were legally, practically, and financially possible, simple, or advantageous to do as you suggest, someone would be doing it. Pretty much no one is. That should tell you something right there. 🙂

  4. If they were going to utilize elements and likeness of Trek and Suess they could have asked CBS and Suess for their blessing. Kind of like how Weird Al always asks artists before creating a parade of their music.

    1. I think you mean parody, not parade. The fact is that Weird Al does it as a courtesy. Most artists license their music for money. But parody is protected by Fair Use, and Weird Al’s songs are parody. That’s why he was never sued for using “Gangsta’s Paradise” without approval or permission.

      Team Mash-up believed their project was a parody (and protected by Fair Use) right up until the judge ruled otherwise. Neither DSE nor CBS is in the business of “giving their blessing”–just ask any fan filmmaker who has asked CBS licensing for an official acknowledgement of their fan film! CBS might “look the other way” with most Trek fan films, but they never give an official blessing to any fan film (other than Axanar, as that will be made under the mutually-agreed-upon constraints of the settlement).

      Most likely, DSE would be the same way. They might entertain the proposal of a license, but they would first want to know that CBS was board. CBS would first want to know that DSE was on board. Stalemate. Also, both licenses together would total about $100,000 (possibly $150,000 or more) UPFRONT. ComicMix was only looking to crowd-fund $30,000 for production and printing of a run of 5,000 copies. They could never have afforded two separate licenses.

  5. I am a bit torn on this. Looking at that first picture the similarities are just way too close in my opinion. It is just as if they changed the characters, but the background stayed the same. To me that is a just a straight rip off almost as if I say take the movie African Queen and switch the sexes of the characters and make the film a shot for shot duplicate. Yes I changed somethings, but in the end it is almost an exact duplicate of another movie. The second one if that is how the book is going to be, then oh hell no the Seuss estate can go and suck an egg as yes it is inspired by the art style of the Seuss books, but artistic style can be copied.

    1. Think about what can be copyrighted. A story can be copyrighted. An object in a story that is unique to that story (e.g. the Wonkavator in “Charlie and the Chocolate Factory” or the staraship Enterprise in Star Trek) can be copyrighted. A character can be copyrighted (e.g. the Grinch or Captain Kirk). And a fictional race of beings can be copyrighted (e.g. Klingons or Romulans or the Whos down in Whoville).

      But what exactly did Team Mash-up copy from Dr. Seuss? They used no recognizable character. Even the “boy” was dressed differently and might not have even been a boy when wearing a Starfleet uniform (which is worn by adults). Dr. Seuss’ boy wore infant pajamas.

      There was no copying of the Go! story text. While it’s hard to read the text in these images, it’s totally different, as Boldly is all Star Trek related. Sure, it rhymes, but you can’t copyright the simple act of rhyming.

      So no, nothing that was DSE’s intellectual property was copied other than the art style, and style isn’t a copyright claim, it’s trademark. And the question becomes: can a style be trademarked? The other question is: did Team Mash-up copy too much or just enough? Sure, the Sneech star-machine looked very similar to the Seuss original, but not the people going in or coming out (who were not Sneeches). And the control unit was a transporter console. So on that page, only enough was “copied” to make sure readers knew it was inspired by Dr. Seuss.

      The same goes for the two Spocks. As the judge herself noted, the two Zaxes are at odds with each other in the middle of a barren desert, neither willing to step aside. The two Spocks are both contemplating, playing a game of 3D chess while kids enjoy themselves in the background. The page is not a “slavish copy” of the original “Zax” story but instead a fresh and new creation featuring a very different scene and characters and objects…only drawn in the familiar Seussian style.

      In this way, I think the best question for the jury does come back to the one I included at the top: “What exactly should Team Mash-up have licensed?”

      That said, I actually think, had CBS gone after them (and CBS still could), Team Mash-up might be more likely to lose, as they ARE using copyrighted characters and names and objects from Star Trek. However, I think ComicMix could much more easily claim parody status on the Star Trek end, as the Trek jokes are very funny, and the book does provide a critical commentary on the tropes of Star Trek.

      Anyway, we’ll know more VERY soon!

      1. Which is why I said I am kinda torn. I mean that first picture the panels are an almost duplicate of the ones from the Seuss book with only changes to the characters. That to me is just a little bit too close to just copying it and does not sit well with me. Now the second set with the changes that are more inspired by the art style of the original work

        1. Almost duplicate isn’t the same as a duplicate. The question is: when have you changed enough? The judge thinks they did. The question now is more one of potential market and financial harm.

  6. Sometimes though, things can slip right past S&P’s radar.

    I can remember a situation in the early 2000s involving one Manny Patel, a rather flamboyantly gay Anglo-Asian gent, well known among the fan community for making Star Trek music videos.

    The situation as I understood it was as follows, Patel obtained the license from CBS/Paramount to hold official Star Trek conventions within the UK.

    He named his company White Swallow, and things were going swimmingly – until some Anglophile within CBS/Paramount informed the higher ups that “White Swallow” was in fact a euphemism for oral sex between gay men.

    Patel lost the license, his company folded, and he vanished from the convention scene. Last anyone heard he was living in Germany.

    1. I don’t think S&P deals with conventions and licensees, Ronnie, only broadcast TV.

      That said, something in televised Star Trek did, indeed, sneak past the censors back in 1966 in the very second week of Star Trek’s debut on NBC. In “The Naked Time,” an intoxicated Sulu grabs Uhura and says, “I’ll protect you, fair maiden!” Uhura replies, “Sorry, neither!” I doubt the suits were paying close attention because, if you think about it, what Uhura just said was essentially, “I’m black, and I am most certainly not a virgin!” 🙂

  7. So . . . that was last week, so what’s the juice on the profuse diffuse obtuse abuse alleged by Seuss, will Team M (Moose?) need to reduce/recuse, or vamoose lest their goose be in a noose? Or will they be let loose? What can we deduce? Can you please adduce? Or was there anything to produce, transduce, or set unloose? (Time for a masseuse?)


    1. Too bad my name isn’t Bruce (or Zeus), I’d ask for some juice!

      Anyway, the judge listened and will make a ruling on both motions. When? We have no idea! One assumes before the trial is supposed to start at the end of March. Then we’ll see if either side managed to induce! 🙂

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