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…?

Yes, the case is now over. The judge was presented with two pre-trial motions for summary judgement (read more about them here), one from each party. The Plaintiff was asking for the judge to do essentially the same thing that was done in the Axanar infringement lawsuit brought by CBS and Paramount: rule that Fair Use was not a valid defense. This would have made the case all but impossible for the Defendants to win.

Team Mash-up, on the other hand, was asking the judge not only to rule that Fair Use was a valid defense but that their work was, in fact, Fair Use after all. And if it’s Fair Use, then it is protected by the First Amendment as free speech. The case would be dismissed.

Going into February, Boldly! was in a place in terms of Fair Use that the judge referred to as “near-perfect” balance. Let me explain that…

There are four aspects of Fair Use, and Team Mash-up already had the first one (is it a total copy or does it transform the original in some way?) firmly in their favor. Although the judge ruled Boldly! was NOT a parody—which is automatically protected speech—she did rule it was transformative. In other words, although it copied a lot of things from Dr. Seuss source material, it transformed those drawings and characters and text into something completely new and original. The plaintiffs argued in filings and court that the work was NOT transformative, but the judge didn’t agree. So 1-0 in favor of the defense.

The second factor is sorta a “gimme” in any Fair Use case: is the original work worthy of a copyright? Is it creative and widely published? No one on either side argued that Dr. Seuss’ works weren’t worthy of copyright. And so the second factor, almost by default, weighed in favor of the plaintiff. The score was now 1-1…but the first ONE is big and the second one is smaller because it’s almost automatic in copyright cases.

The third factor is the question of HOW MUCH was copied? This is subjective, to be certain, but did the Defendants copy more than was necessary to make their work…or was it just enough? In other words, in order to make a mash-up, you kinda need to make it recognizable as the two things you’re mashing. So Boldly! needed to look like Dr. Seuss (and Star Trek, of course). But did it go too far?

The judge didn’t think so a year and a half ago when she first ruled on this third aspect of Fair Use. And although the Plaintiff’s lawyers tried really, really hard in their latest filings and arguments to change her mind, they came up woefully short. The judge explained in her ruling…

There is always an argument to be made that an infringement defendant could have used less---otherwise the case would not be in litigation. The pertinent question is whether Defendants “only copie[d] as much as [wa]s necessary for [their] intended use.” L.A. News Serv. v. CBS Broad., Inc., 305 F.3d 924, 941 (9th Cir. 2002) (emphasis added) (quoting Kelly v. Arriba Soft Corp., 280 F.3d 934, 943 (9th Cir. 2002)). Here, Defendants sought to “mash up” the Star Trek original series with Go! in particular, rather than “Dr. Seuss” in general. 

Examining the cover of each work, for example, Plaintiff may claim copyright protection in the unique, rainbow-colored rings and tower on the cover of Go! Plaintiff, however, cannot claim copyright over any disc-shaped item tilted at a particular angle; to grant Plaintiff such broad protection would foreclose a photographer from taking a photo of the Space Needle just so, a result that is clearly untenable under---and antithetical to---copyright law.

But that is essentially what Plaintiff attempts to do here. Instead of replicating Plaintiff’s rainbow-ringed disc, Defendants drew a similarly-shaped but decidedly non-Seussian spacecraft---the USS Enterprise---at the same angle and placed a red-and-pink striped planet where the larger of two background discs appears on the original cover. Boldly’s cover also features a figure whose arms and hands are posed similarly to those of Plaintiff’s narrator and who sports a similar nose and eyes, but Boldly’s narrator has clearly been replaced by Captain Kirk, with his light, combed-over hair and gold shirt with black trim, dark trousers, and boots. Captain Kirk stands on a small moon or asteroid above the Enterprise and, although the movement of the moon evokes the tower or tube pictured on Go!’s cover, the resemblance is purely geometric. Finally, instead of a Seussian landscape, Boldly’s cover is appropriately set in space, prominently featuring stars and planets. In short, “portions of the old work are incorporated into the new work but emerge imbued with a different character.”

Defendants took discrete elements of the Copyrighted Works: cross-hatching, object placements, certain distinctive facial features, lines written in anapestic tetrameter. Yes, these are elements significant to the Copyrighted Works, but Defendants ultimately did not use Dr. Seuss’ words, his character, or his universe. The Court therefore stands by its prior conclusion that Defendants took no more from the Copyrighted Works than was necessary for Defendants’ purposes, i.e., a “mash-up” of Go! and Star Trek, and that, consequently, this factor does not weigh against Defendants.

So if you’re still keeping score, that’s not a point FOR the Defendants, but it’s not a point AGAINST them either. It’s still BIG 1 – little 1. One factor to go…

The final Fair Use factor is potential market harm to the copyright holder. This doesn’t mean that a Fair Use work isn’t allowed to make a profit (it totally is). But if its publication comes at the EXPENSE of the original owner, then it weighs against the Defendants.

Previously, the judge had given the Plaintiffs “the benefit of the doubt.” But now it was time to “put up or shut up” (or, in legalese, prove market harm through a preponderance of evidence). DSE argued two points of harm. First, Oh, the Places You’ll Go! (DSE’s original book) wasn’t intended only for kids but also for adults and recent graduates. Boldly! was obviously not a kids book, but by targeting adults and potentially adult graduates (assumedly Trekkies), some folks would buy the mash-up instead of the original. Voila…market harm!

The judge wasn’t convinced:

What is clear is that Go! is Plaintiff’s “best-selling book,” and that is it a “NY Times best seller each spring” with “[o]ver 12.5M copies sold with sales increasing the past 4 years!” Defendants, on the other hand, raised $29,575 from 727 backers for Boldly over a two- month period through Kickstarter, and ThinkGeek placed an order for 5,000 copies of Boldly for Christmas 2016 sales. Although it is certainly conceivable that some would-be purchasers of Go! would instead purchase Boldly for a Trekkie graduate, there is a dearth of evidence or expert testimony permitting the Court to extrapolate the likely effect---if any---that Boldly may have on Plaintiff’s sales of Go!  

The Plaintiff’s other argument was theoretical: lost licensing revenue because potential licensees might see Boldly! getting away with using DSE’s intellectual property and not bother purchasing a license either. Again, the judge wasn’t convinced. Here she felt (and had previous caselaw to back her up) that simply imagining a potential market isn’t enough. DSE had to show actual damages and lost revenue or a high likelihood of it.

Indeed, DSE’s own Style Guide (intended for licensees) kinda helped prove the Defendants’ argument that their mash-up work occupied a market that DSE was unlikely to ever license or develop…

Under “Do’s and Don’ts,” Plaintiff instructs its licensees not to show characters with items “not from [the Seuss] world” and not to “use Seuss characters with third party’s characters.”  Licensees are also not supposed to “make up Seuss-like rhymes.” Boldly, however, breaks these rules: it makes liberal (if not exclusive) use of third-party characters from Star Trek, mixes them with non-Seussian elements and worlds from Star Trek, and it creates its own Seuss-like rhymes using Star Trek wordplay. It is therefore unlikely that Boldly is “precisely the type [of ‘collab’] that [Plaintiff] might consider.” 

Just as happened with the third Fair Use factor, the judge felt that there was no point against Team Mash-up and no point in favor of them. This left the score BIG 1 – little 1.

The judge ruled…

On balance, therefore, the fair use factors favor Defendants. Accordingly, the Court GRANTS Defendants’ Motion for Summary Judgment as to fair use. 

So game over, then? Not quite yet. There were still two complaints remaining on trademark infringement (separate from copyright) for the use of the Dr. Seuss typeface and its artistic style.

Artistic style always seemed to me to be an overreach, and it went down quickly, as courts have typically kept trademark protections narrow rather than broad…and trademarking an entire artistic “style” would be highly unusual. Then the typeface claim went down almost as quickly. While the copyright ruling took the judge 20 pages to explain, the trademark rulings took less than 4.

You can read the judge’s full ruling here.


So what happens now?

Well, DSE could conceivably appeal the judge’s decision. But that would be a long process (2-4 years)…and they would need to find something about this case that was mishandled by the judge in order to appeal her decision. You can’t just appeal because you didn’t like the outcome.

I’m not just sure that Judge Sammartino did anything particularly wrong or unfair in this case. If anything, she gave DSE every possible chance, including resurrecting their trademark complaints after dismissing them earlier on. She even gave them an opportunity to win on Fair Use by proving financial harm in the marketplace, and they were unable to do so.

Aside from, “We don’t agree with her ruling,” I’m not sure what there is to be appealed. In the meantime, ComicMix is free to publish Boldly! whenever they want to.

Could CBS now also sue ComicMix (and Gerrold and Templeton) for infringing on THEIR copyright for Star Trek? The option is always available for CBS, of course, but would it be a wise choice? Personally, I don’t believe so.

First of all, DSE had deep pockets (just like CBS) and still lost. So it’s not like CBS can just say, “Well, if they’d only had better (more expensive) lawyers, DSE could’ve won. Let’s show ’em how it’s done!”

Second, the case was already lost once on its merits, with the work being declared Fair Use. It would be hard to un-ring that bell if CBS sued for infringement. The previous ruling for Fair Use (in terms of Dr. Seuss) would likely apply also to its use of CBS’s Star Trek intellectual property.

And third, while Boldly! wasn’t ruled a work of parody in regard to Dr. Seuss, it COULD be considered a parody of Star Trek (it makes fun of a lot of Trek tropes…like Kirk’s many relationships with women). And if Boldly! is ruled a parody, the case is immediately dismissed.

So lots of potential pitfalls for CBS just to block a book that’s gonna print maybe 5,000 copies (maybe 10 or 20,000 if it’s lucky). Doesn’t seem worth the hassle…at least to me. Then again, I wouldn’t have sued Axanar either!


And finally, here’s a quote (in rhyme!) from GLENN HAUMAN of ComicMix on yesterday’s win in court…

Summary judgment at last we’ve received,
And so victory has been finally achieved.
The judge has ruled our book’s fair use
And so we’re allowed to mash-up Seuss.

We don’t want to brag. And we will not gloat.
Allow us instead, to gratefully promote.
We thank the lawyer who brought sound defeat
To DLA Piper— we think Dan Booth’s sweet!
Michael Licari helped us out as well,
And Ken White lit his signal, which really was swell.

We thank all our backers who gave us their aid,
Which helped us to battle our legal crusade.
You all gave support as the motions dragged on,
Without you it’s impossible to have boldly gone.

So what are their plans for Boldly! now that the legal drama is finished? Glenn hasn’t told me yet, but I’m gonna keep pestering him!

33 thoughts on “Take that, DR. SEUSS; TREK MASH-UP is legally FAIR USE!”

  1. Insofar as CBS is concerned, whilst the judgement may be persuasive, as they were not a party they are not bound by the outcome. They would not, legally, start behind the 8 ball with a presumptive finding.

    1. As I said, the problem for CBS is that one Federal judge found the work to be Fair Use, and that would be the first mountain for CBS to climb. Remember that Judge Sammartino defined the work as transformative from Dr. Seuss, not significantly impacting DSE financially, and using only as much as it needed to in order to recognizably mash-up both properties.

      It is likely a second judge would rule Boldly! to be transformative from Star Trek, as well (unless Captain Kirk was now a four-year-old boy and Trek told its stories exclusively in rhyming verse). Does Boldly! take more from Trek than it needs to? I think a judge would agree that it takes just enough to identify the who’s and what’s, but the characters and equipment are drawn very differently. So that’s 2 out of 3. And finally, does Boldly! represent market confusion or harm to a billion dollar franchise? Probably not.

      So most likely, any lawsuit from CBS wouldn’t survive the initial motion to dismiss. If it did, though, I suspect that a court would look at Boldly! in terms of Star Trek and consider it a critical commentary and/or parody. It didn’t parody Dr. Seuss, but it does parody Trek.

  2. also, insofar as why an appeal may occur:
    Copyright Act
    17 U.S.C. § 505
    “In any civil action under this title, the court in its discretion may allow the recovery
    of full costs by or against any party other than the United States or an officer thereof.
    Except as otherwise provided by this title, the court may also award a reasonable
    attorney’s fee to the prevailing party as part of the costs.”

    The risk of attorneys fees is real here. This may encourage someone to roll the dice again.

    1. The case was dismissed, Nadav. Awarding attorneys fees is no longer relevant. Such fees are only awarded as part of damages, which would require a verdict of liability. None is forthcoming.

      Are you fishing for something? This case is over with a capital OVER, my friend.

      1. Jonathan,
        attorney fees are not awarded as part of damages. Where they are awarded, they are awarded separately to damages, usually- but not always- to the victorious party.
        The point here is not ‘fishing’, it’s understanding why there may be an interest to one party in continuing the case. They’ve likely invested a great deal of money, and may be able to recover it. Not saying they will, not saying they won’t, but if you are analyzing litigation, best to do it by understanding the variables.

        1. How would DSE continue this case, Nadav? It’s been dismissed. And I don’t think they have grounds for an appeal. I could be wrong, but even if they manage to win an appeal, all it means is that they are back to square one and having to sue all over again with the outcome still very much uncertain. I’d take the loss and keep the extra legal fees in my own pocket rather them giving them to a law firm and hoping I get them back in another 5 years or so.

          1. DSE would continue the case through an appeal, of course. They would not necessarily be back at square one, either- the evidence is in, the discovery is done, and what they would be appealing is the judge’s consideration of that evidence, and reasoning thereto, in deciding on fair use. Most appeals are of that nature- an appeal as to a miscarriage of judicial reasoning, a misapplication of principle or something similar. The appeals court may, in many cases, substitute a decision rather than starting the case over. A good example of that is the Brady v Gooddell (Deflategate) case, where the -from memory- 9th circuit court overturned the first instance judge’s decision on the basis of judicial error through a misapplication of the deferral rule for enforcement of arbitrations.

            Put simply:
            – the case may be over, but may not;
            – it would be continued through an appeal, if it is continued;
            – the appeal court could rule differently on the question of fair use and send the case back down for trial, overturn the dismissal of the plaintiff’s case and order the matter remitted on damages or make some other order, including a rehearing before the same judge or another judge;
            – there remain a number of incentives for DSE to do so, including avoiding precedent, commercial positioning (‘don’t take us on, we will fight every case all the way’) and the potential recovery of attorneys’ fees.

            about 20% of federal court cases are appealed, so there is a decent chance. I’m not saying it will happen, but any analysis needs to start with an understanding of the interests

          2. Nadav, the case never got to trial, so the Appeals Court can’t determine a verdict and damages. That would be illegal and a violation of our 7th Amendment. Remember that the plaintiffs weren’t asking for a summary judgment of liability and damages from the judge. Therefore the Appeals Court couldn’t make such a ruling either, and there was no such ruling to overturn. Even were an appeal to succeed and overturn the judge’s ruling of Fair Use, all the plaintiffs were asking for was that Fair Use be ruled invalid, not for the case to be adjudicated in full. A trial would still need to happen regardless…only there might be a possibility that the Appeals Court could determine that Fair Use would be disqualified as an employable defense.

            Such a ruling by the Appeals Court to nullify Fair Use would not only negate the judge’s ruling of Fair Use but ALSO make a new ruling that Fair Use is an invalid defense, something extremely unlikely to happen in the ultra-liberal Ninth Circuit. Most likely (although still unlikely) is that the Appeals Court would rule Fair Use needs to be determined as a matter of fact and not a matter of law and must be sent to a jury. If that happens, then the trial still would go forward, with a jury deciding the verdict. And since the judge’s initial opinions and rulings would be admissible evidence, the jury would not only hear the argument in favor of Fair Use from the defense but ALSO from a federal judge specializing in intellectual property law. That would be a VERY high mountain for DSE to climb.

            Anyway, I know you’re a lawyer Down Under, Nadav, but I think you’ve got a lot of opinions about the logistics of this case that aren’t sustainable or supported by facts or legal procedures in this country.

  3. “I’m not just that Judge Sammartino did anything particularly wrong or unfair in this case.”

    Did you mean “sure” instead of “just”?

  4. Interesting read, thanks for summarising , I certainly couldn’t have faced reading the detail but it was fun to follow. My first reaction when I first read about this, and my legal knowledge is minimal, was that making money off something like this (however little) didn’t seem right. But I’m happy to stand corrected in the face of the law and I can understand the implications had the ruling gone the other way. Good luck to them.

    Based on how your scoring went, would you say it was a close decision or a slam dunk in the end? Or is it just the case that a win is a win?

    1. It was a hard-fought win…hardly a slam dunk. And a lot depends on the judge you get. Had Axanar gotten Judge Sammartino, I suspect the CBS/Paramount lawsuit would have been allowed to go to trial with Fair Use very much in play. And had Dr. Seuss gotten Judge Klausner, he would likely have ruled against Team Mash-up using Fair Use as a defense (the same thing he did for Axanar). So some of it is the luck of the draw. The same thing happened with Paul Manafort’s two recent judges and their rulings.

      In the end, though, Judge Sammartino recognized the importance of this case and deliberated very long and carefully. It took five weeks from the time of oral arguments for her to announce her ruling, and it was very well researched. She made both parties jump through a lot of legal hoops to convince her they were right. In the end, Team Mash-up had the winning argument (or DSE had the losing one). Either way, I finally got to cover a lawsuit where Fair Use was successfully used as a defense! YAY! 🙂

  5. I don’t see CBS going after that, seeing as lawsuits haven’t gone very well for them.

    Besides, I read the original book when I was a kid. I can’t see this one hurting it NOW.

    At least DSE was less reckless than CBS about suing.

    1. >>I don’t see CBS going after that, seeing as lawsuits haven’t gone very well for them.

      That’s too broad of a statement. CBS regularly sues numerous parties. Most lawsuits settle quickly in CBS’s favor. Axanar was a rare exception.

      >> Besides, I read the original book when I was a kid. I can’t see this one hurting it NOW.

      Well, that has no impact on CBS. The original book was Dr. Seuss, not Star Trek.

      >> At least DSE was less reckless than CBS about suing.

      Hard to make that call, to be honest. Neither was “reckless.” DSE was more consistent, though, as they vigorously defend their IP (and for trademarks, one is required to). CBS has essentially ignored Trek fan films for five decades.

  6. Like Alec Peters with Axanar, David Gerrold SHOULD be charged with both copyright infringement and plagiarism. They ARE NOT above the law and they have done more harm to Star Trek and its unstable fan base than good.

    The judge made an error in the final ruling.

    Like Peters, Gerrold SHOULD have been prosecuted to the limit of the law.

    Hopefully that will still happen if CBS Paramount does decide to go that route.

    Once again, the judicial system failed.

        1. Dude, I just think you’ve got too many things wrong regarding this case. In order for many of your conclusions or predictions to be valid, impossible things have to happen. I would assume you can see that.

          1. Jonathan,
            with respect- and I mean that – I think you’ve basically misunderstood my point regarding appeals. I’m more than happy to disagree with you regarding procedure- I don’t think there’s much point in continuing that discussion here.

            But my comment here, to which you are replying, was responsive to your charming direction to ‘RoboCop.’ Respectfully (and I mean that in the way that lawyers do- a nice way of saying that we think you are very wrong) it lowers the tone of the debate to troll levels when, rather than either responding to
            someone’s ideas, or simply ignoring them, you resort to petty insults.

            Especially given that you see your role, in large part, as speaking to ‘neutrals’ on the Axanar issue, it doesn’t help to be crude.

          2. Forgive me, Nadav. WordPress doesn’t identify where on the page a response has submitted. I’d assumed it was continuing our discussion.

            As for Robotocop, he’s a troll who chooses not to identify himself and to use my blog as a way to get in cheap digs at Alec Peters and David Gerrold with inane commentary that shows ignorance and simplicity of mind. The line “Like Peters, Gerrold SHOULD have been prosecuted to the limit of the law…” shows the depth of the ignorance and stupidity, as no one can ever be prosecuted for copyright infringement since it is not a criminal act. At worse, Alec or David could have been found liable for a civil complaint. Prosecuted? Hardly!

            Also, nobody “plagiarized” anything. The judge herself ruled the work to be transformative, meaning “based on” but not plagiarized. Indeed, infringement itself does not always mean plagiarism. Alec Peters certainly didn’t plagiarize anything.

            Saying that either Alec or David Gerrold did “more harm to Star Trek and its unstable fan base than good…” is not only ignorant and incorrect, it’s just plain stupid. David Gerrold wrote one of the most beloved episodes in all of the history of Star Trek. How could that be harmful? Later on, he worked on other episodes, novels, and even fan films. As for Alec, whether he hurt or helped Star Trek fandom (after all, Alec was almost single-handedly responsible for making the Christy’s auction a huge success), is open to nearly constant debate.

            Robocop’s line “The judge made an error in the final ruling…” should have been phrased, “I believe that the judge made an error in the final ruling.” Anything else implies that this ignorant and simplistic mind with deep-rooted biases is somehow more intelligent than a Federal Court judge. Likewise, the line “Once again, the judicial system failed…” is just plain stupid. It didn’t fail. It did its job in evaluating the merits of the case and then declaring a summary judgment in favor of the defendant. That is exactly the way the system is supposed to work. Likewise, it could have ruled the case be taken to trial or ruled that Fair Use was an invalid defense. Those were the options. Nothing broke down. The system did not fail; it worked the way it was supposed to. Robocop simply didn’t like the outcome. Tough noogies. Robocop was wrong. Stuff happens. Deal with it, RC.

            When the judge in the Axanar lawsuit declared Fair Use to be an invalid defense, did you ever once hear me say, “the judicial system failed…”? Of course not! Because I’m not an ignorant idiot. I did, however, discuss how the ruling left the case open to appeal in that for 300 years, Fair Use was adjudicated as a matter of fact by a jury, not a matter of law by the judge. I’m surprised that no one (including you) threw my words back at me and cited THAT as grounds for appeal in this case (because it is).

            But rather than argue anything with respect and intelligence (as you chose to do, Nadav–which is why I treated you courteously in kind), Robocop chose to just be a loud-mouthed, ignorant idiot. Sorry if calling someone that seems “beneath me,” but I feel it is the truth. This is not a smart, respectful, or even thoughtful person…and obviously not one who read my blog and responded to thoughtful and intelligent points that I actually wrote. So why should I waste time explaining things to a closed and simple mind who seems to be stuck on “send” and not open to “receive” in this discussion thread? So instead, I gave him all of the respect I felt his comments merited…just as I give you the respect that your comments merit. You are intelligent and thoughtful and willing to identify yourself by name. Robocop is just an anonymous troll with low intelligence. But rather than just deleting his comment, I approved it with the response I felt was most appropriator for the commenter.

        1. The real RoboCop like our “friend” here didn’t care about the law.

          “Dead or alive you’re coming with me.”

    1. Wow, sounds scary!

      That said, it’s all bark and no bite. Even an appeal is an uphill battle that could take years and would only wind up with a trial to determine Fair Use, not a judgment.

      If the best DSE can come up with is that the judge didn’t believe that Boldly! would cause them real market harm, that’s gonna be a tough sell…as the judge herself commented that their book sells 1.5 million copies a year and ComicMix is planning to print 5,000 copies. DSE’s book, based on its retail price of $18.99, brings in only about $5 or so in profit for DSE per unit sold (based on wholesale pricing being about double production and distribution costs, on average). So if 5,000 people don’t buy DSE’s book because they bought Boldly! instead (a tough link to prove), then the damages should be capped at $25,000.

      If I’m ComicMix, I’d publish Boldly! ASAP and then use DSE’s sales figures next year to bolster the argument that Boldly! didn’t have any significant market impact. Right now, DSE is in damage control mode, and they’re growling like a tiger. In the end, though, they have almost no teeth left.

  7. Morally and ethically, what David Gerrold did was still wrong. And the judge not ruling in favor of the Dr. Seuss estate was also wrong. As RoboCop and various others have pointed out, Gerrold violated the law. His actions certainly reflect badly on Star Trek as well as both its fan following and franchise.

    David Gerrold should have been prosecuted to the limit of the law.

    1. Prosecution is reserved for criminal acts. Nothing criminal was ever alleged in the civil infringement lawsuit.

      As for a violation of the law, Fair Use is written into copyright law. You need to respect all aspects of copyright law, not simply those you agree with. Did you read the judge’s ruling in full? I think you should before commenting further.

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