Well, this story suddenly got interesting again!
Last October, I reported on the sudden and unexpected settlement of the half-decade copyright infringement lawsuit filed by DR. SEUSS ENTERPRISES (DSE) against tribbles creator DAVID GERROLD, award-winning comic book illustrator TY TEMPLETON, and COMICMIX, LLC editor and vice-president GLENN HAUMAN. The latter three individuals had attempted to crowd-fund through Kickstarter a mash-up of Star Trek and Dr. Seuss titled Oh, The Places You’ll Boldly Go! But DSE quickly put the brakes on that, forcing Kickstarter to take down the fully-funded $30,000 campaign and return the donations, and then suing Team Mash-Up for what could have been six or even seven figures if the legal verdict went in DSE’s favor.
What followed was years of a litigation roller coaster, sparking approximately thirty blogs from me as I tried to explain (in layman’s terms) everything that was being argued by both sides and the various rulings from the judge(s). At first, it looked like Team Mash-Up had actually won when, after two and a half years, Ninth Circuit Federal Judge Hon. JANIS SAMMARTINO dismissed DSE’s complaint, finding that Boldly! qualified for free speech protection under the legal doctrine of fair use. But a year and a half later, a 3-judge panel of the Ninth Circuit Court of Appeals reversed the decision, ruling that Boldly! was NOT fair use and sending the complaint back to the district court.
In October of 2021, weeks before the case was to go to trial, the two sides announced a settlement because Ty Templeton had developed late-stage colorectal cancer, and neither side wanted to put the man through the stress of a multi-week jury trial (at the height of COVID, no less!) while prepping for major surgery and months of intense cancer treatments. The two legal adversaries agreed that there would be no trial, no judgment, no payout in either direction, and each side would cover their own legal fees. But sadly, ComicMix would give up all efforts to create or publish a Star Trek/Dr. Seuss mash-up book.
End of story, right? Not quite…!
During the course of the nearly-half decade of litigation, Team Mash-Up did a fair amount of deep-diving into DSE’s long history of copyright filings and renewals and discovered something VERY interesting. Dr. Seuss’s famous stories of the Sneetches, the Zax (or rather, Zaks…more on that in a moment), and at least four other short stories had fallen into the PUBLIC DOMAIN!
What does that mean?
In short, once the registration of a copyrighted work expires, anyone can do anything they want with the intellectual property with no required license or content control of any kind from the previous copyright owner. Mickey Mouse (or rather, Steamboat Willie) falls into the public domain the year after next. Superman and Batman will be open to public usage starting in 2033. But sadly, us Trekkies will have to wait until 2062 to completely ignore the Star Trek fan film guidelines.
However, in the case of multiple short stories from the pen of THEODORE S. GEISEL (who would take the pen name of Dr. Seuss), they’ve already been in the public domain since the early 1980s!!! (I explain what happened in this blog.) In other words, anyone can now publish those stories in a book and sell it—and that is precisely what ComicMix intends to do…!
In a new Kickstarter campaign that launched on May 10, ComicMix set a $5K goal to crowd-fund the publication of a printed book (in both hardcover and paperback) titled “The Zaks” and Other Lost Stories that will include at least six Dr. Seuss stories that are currently in the public domain, including high-quality reproductions of the original artwork. The campaign blew past its goal in less than 30 hours, and as I write this, it stands at $8K from nearly 300 backers. Not too shabby!
In addition to copies of the book itself, ComicMix is also selling a minimum of six 11″ x 17″ posters (both individually and as a set) featuring the original public domain artwork and short stories. Already, the hardcover books have sold out (I got mine!), but the paperbacks will include the exact same content.
The campaign ends on May 31, with stretch goals lined up all the way to $100,000. Any money raised through the Kickstarter plus other revenue streams like comic convention booths, libraries, bookstores, etc.—after covering the costs of printing and shipping the books (plus fees to Kickstarter)—will go toward paying off the legal expenses from the mash-up lawsuit. Funds generated beyond that will be given to Ty Templeton to help with his medical costs. And finally, any remaining money will be donated to content creators endeavoring to argue fair use in court but who are struggling to pay their own legal expenses.
Why such a short (only 3 weeks) Kickstarter campaign? Two reasons. First, ComicMix has another crowd-funder set to begin on June 1, and Kickstarter doesn’t allow a person or company to host more than one campaign at a time. Second, these books and posters need to be ready to display and sell at the ComicMix booth at San Diego Comic-Con beginning on July 21. (Amusingly, DSE is based in La Jolla, a suburb of San Diego.)
I can already hear some of the social media “armchair infringement police” typing their outraged comments. After all, copyrights are forever, right? And even if they’re not, why is ComicMix poking the bear and risking another lawsuit? Haven’t they paid their lawyers enough? Isn’t this just ComicMix being an obnoxious sore loser?
That’s one way to look at it.
It’s no secret that Glenn Hauman and Team Mash-Up were eager to get into the courtroom and let a jury decide the fate of Boldly!, but Ty’s well-being had to come first. However, the settlement likely didn’t “settle” the feelings of anger, resentment, and frustration on the part of the former defendants. So yes, there’s probably a bit of “sticking it” to DSE involved. But there’s also something else.
Glenn Hauman has been a strong proponent of free speech rights going back decades. In fact, in 1997, he was part of a groundbreaking case in front of the Supreme Court, ACLU et. al. v. Reno, where a unanimous 9-justice ruling stopped the U.S. government from censoring and criminalizing certain “indecent” content on the Internet.
When I messaged Glenn about why he was waving such an obvious red cloak in front of the DSE bull, he pointed me to an article about Filipino journalist MARIA RESSA, who said in 2020: “Don’t be afraid—if you don’t exercise your rights, you will lose them.”
Apparently, as far as Glenn is concerned, that is all ComicMix is doing: exercising their rights under the First Amendment. But will DSE agree with this seemingly “noble” rationale? Glenn (as he so often does) answered me in rhyme…
It’s true that if DSE hadn’t besmirched
our fun little book, then we wouldn’t have searched
and found all the stories that they do not own
and use them ourselves— we wouldn’t have known.
But when we found out that only we knew
(okay, to be fair, DSE knew it, too)
that they could be used? We took it as a hint
to recoup our costs by releasing in print.
Some see us using this as quite ironic–
–we think of it more as a justice harmonic.
But then I asked the more important question: what happens if (and more likely when) DSE sends ComicMix a Cease & Desist Order and/or files a lawsuit with a demand to the judge for an emergency injunction against printing, marketing, selling, distributing, or in any other way promoting their proposed new book? Even if ComicMix ultimately wins, won’t they be tied up in court long enough to miss San Diego Comic-Con—and have to pay a lawyer more money in the meantime?
After pretending to whistle idly (not easy to do on Facebook Messenger!) and then reminding me that San Diego was also the home of ORVILLE REDENBACHER, and that this might be a good time to make some popcorn, Glenn shifted to a more serious answer (or as serious as you can be using rhyming couplets)…
The stories we’re planning to put in our book?
We’re sure they don’t own them— and boy, did we look.
If they think that they’re theirs, well, we’d sure like the proof.
We’re happy to let a court find out the truth.
Y’see, in order to sue someone for copyright infringement, the litigant must first prove to the court that he/she/they OWN the copyright in question. DSE will likely show the history of registrations for the 1961 book The Sneetches and Other Stories, claiming their copyright extends back to the original publication in Redbook Magazine.
But it was shown during the mash-up trial that, no, it does not. Theodore Geisel took some of the 23 stories that were published in Redbook during the early 1950s, expanded the stories, and then publisher Random House later included those expanded stories in books like The Sneetches and Other Stories.
Redbook eventually reverted the rights for those stories back to Geisel, not to Random House. And then Random House filed a new copyright registration for The Sneetches and Other Stories, leaving blank the line that said “If any substantial part of this work has been previously published, give a brief general statement of the new matter in this version. New matter may consist of compilation, translation, abridgment, editorial revision, and the like, as well as additional text or pictorial matter.”
Some might argue that this was a simple mistake, a clerical error, if you will. But in another copyright registration application for the book Yertle the Turtle and Other Stories in 1958, for example, and a subsequent renewal of it in 1986, Geisel and Random House disclosed that Redbook had published earlier versions of that book’s stories. In other words, they were careful enough with the form to fill it out correctly SOME of the time.
Without the Yertle registration, DSE might (might!) have a case. But with it, the copyrights for stories like Sneetches and Zaks remained with Geisel, were NOT transferred or renewed, and so expired 28 years after the original publication of those stories in 1953 and 54. (Prior to 1976, 28 years was the length of time defined by the law that a copyright registration remained valid after initial publication). And so those specific copyrights expired in 1981 and 1982, and those stories are now all sitting in the public domain.
DSE, of course, would probably prefer that this information NOT come to light publicly. So for them, the question becomes: do they make a federal case of it? The more attention this gets in the press, the more people will potentially discover that there is certain Dr. Seuss content out there available for free to all. On the other hand, ComicMix isn’t exactly going to hide the fact that they’re releasing this book…and possibly others! DSE could well be in a Koyabashi Maru situation.
Of course, there is one intriguing option that comes to mind—and I did NOT ask Glenn about it because the settlement precludes him from discussing the following subject publicly or privately. But DSE could potentially avoid ComicMix blasting the media with coverage of Dr. Seuss’ public domain status if DSE were to offer something of greater perceived value to ComicMix…even though that something wouldn’t cost DSE anything. And what could that be? Do I have to draw you a picture…?
Granted, that’s entirely conjecture on my part. But I suspect that, if given the choice between DSE allowing ComicMix to release the original mash-up of Boldly! without any interference or reprisal from DSE and simply releasing a series of “Lost Stories” featuring the early work of Dr. Seuss and marketing the daylights out the books from sea to shining sea, Glenn, David, and Ty might be willing to entertain that first option. But what do I know?
Otherwise, though, every Tom, Dick, Harry, Sally, Gwendoline, Francis, Cheryl, and Vinnie…pretty much anybody in America (possibly elsewhere, as well) will be able to take those original stories and republish them without paying a dime to DSE…legally. Of course, they need to be careful to use only the ORIGINAL version of the stories and not what came later…since the latter content is still copyrighted until 2062 (just like Star Trek, as it happens!). But hey, that’s still a decent amount of public domain content to put into books and onto posters, T-shirts, pretty much anything…all without DSE getting any revenue from it.
And hey, if this does get into the media and potentially into the courtroom, expect it to be a BIG story, watched closely not only by the general public but also by Disney, DC Comics, and many other owners of content like Bugs Bunny, Flash Gordon, the Wizard of Oz and Gone with the Wind, Babar the Elephant, Tom and Jerry, Monopoly, and other currently-copyrighted properties that will enter the public domain within the next decade and a half!
Here’s the link to Kickstarter if you’d like to reserve your copy of the public domain merchandise…
10 thoughts on “ComicMix will sell an UNLICENSED book of “lost” DR. SEUSS short stories now in the PUBLIC DOMAIN!”
Curley may have won the war, but, Moe just stuck his two fingers in Curley’s eyes! Meanwhile, Larry stands on the sidelines, rubbing his hands over the warmth of the hot little money bag. Then Moe slapping Larry multiple times, left, right, right, left, snatches the money bag, and clobbers both Larry & Curley over their heads!
You are truly a guy who is wise, David. 🙂
this is fascinating, but, respectfully, I think you’re overegging this particular pudding quite a bit.
Firstly, and without seeking to provide legal advice, it should be clear that the argument with regards to copyright registration that you’re advancing is far from universally accepted- indeed, it rests, largely, on the ability to persuade a judge, one way or another, that the diligence exercised in completing a copyright form in one place, by a company, amounts to constructive knowledge (and negligence) in another. It also suggests that, despite being aware of these claims (having been raised in the earlier proceedings), DSE have been asleep at the wheel. Whilst you may be correct, suggesting it with this level of certainty is a big, bold move, that might end up disappointing a lot of people.
Secondly- and this is a point as much about strategy as substance- is the suggestion of ‘buying off’ ComicMix by allowing some kind of deal on ‘Boldly.’ By launching a kickstarter (and by having previously pled the matter in federal court), ComicMix have already let the cat out of the bag. There is no more secrecy to sell- it’s too late. If ComicMix wanted to negotiate, the time to do so was before they launched, not after. Like a blackmailer publishing the photos, ComicMix have surrendered their leverage.
Thirdly- and this is perhaps a question of style, or professional practice- but this kind of manouver is questionable in lots of ways. You’ve settled a devastating copyright claim that likely would have seen your company destroyed, on the grounds of mercy for a cancer patient. To turn around and thumb your nose like this- it smacks to me of bad faith. Obviously, i haven’t seen the settlement agreement, but i can’t imagine any favours being done by DSE in the future.
I like how you say this is questionable in lots of ways, and then proceed to lay out only one way…
It is the way. I have spoken. 🙂
All valid points, Nadav. Ultimately, a judge may have to rule whether or not DSE’s copyright claims are valid, but it is their burden to prove that they do, in fact, own the copyright(s) in question. The law both in 1961 and today is quite clear. DSE can try to argue “Well, we missed that one…” but will the law give them a mulligan? Hard to say. For every argument DSE makes, ComicMix has a counter, and the actual paperwork does support the little guy in this particular instance.
As for my suggested strategy of what you implied was “blackmailing” DSE, call it what you will. Right now (as I type this), media coverage has been quite limited. That will change in about a month or so and certainly in about 6 weeks when coverage in San Diego shifts to Comic-Con, and the more major news outlets get a sniff of “Dr. Seuss is now in the Public Domain???” So, yes, there is still time to keep most of the genie inside the bottle…should DSE attempt to do so. That’s their call, and of course, ComicMix and Glen Glenn Hauman might not want to play ball. That was only MY conjecture. I’m just watching this from the cheap seats.
As to bad faith, you make the assumption that ComicMix was going to lose their case and pay a large amount to DSE. It’s also possible that the jury may have ruled in the opposite way. Glenn and the team were actually eager to have their day (or weeks) in court, and so the settlement wasn’t necessarily a gift from DSE so much as the game being called on account of cancer. It was a tie, and no one won. That doesn’t mean you can’t have another game later on. You just can’t play the SAME game.
As for “favors,” I doubt DSE will ever do a favor for ComicMix (or most people or companies) completely willingly. They will always do what is in their best interest as a business entity. However, with ComicMix now forcing the DSE to decide what IS in their best interests, the math changes considerably.
Arm chair? check
I’m all set.
Turn off your phone, too. 🙂
Jonathan, your coverage of this has been fantastic, I’ve been tangentially looking after the situation myself for my own star trek book site, you think we’ll ever get a chance to read that whole mashup book? I’d love to do a review of it!
We can but hope, Adam! I understand why DSE wanted to nip this in the bud, but wouldn’t it have saved them hundreds of thousands in legal fees (and earned them maybe $25K) to have simply offered ComicMix some kind of license to use Seussian elements in their book?
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