DR. SEUSS/STAR TREK Mash-up case unexpectedly SETTLES because of cancer…

Do you remember those children’s stories/books/movies/after-school specials where two rival groups are fighting, and suddenly one of the combatants is seriously hurt and everyone comes to their senses? These “simplistic” stories usually climax in the two battling groups putting aside their differences long enough to work together to help the injured person, ultimately realizing that what they were fighting about wasn’t nearly as important as a person’s life.

Believe it or not, the same thing essentially just happened in the copyright infringement lawsuit filed by DR. SEUSS ENTERPRISES (DSE) against Star Trek author DAVID GERROLD, award-winning comic book artist TY TEMPLETON, and ComicMix LLC editor GLENN HAUMAN. Back in late 2016, DSE sued the aforementioned trio over their attempts to crowd-fund and publish a “mash-up” book mixing Dr. Seuss style drawings with Star Trek inspired characters. It was to be titled Oh, the Places You’ll Boldly Go! and here’s some sample artwork of the mash-up alongside the Dr. Seuss originals…

After nearly five years, countless legal motions, judicial rulings, appeals, appellate opinions, and a ridiculous number of blogs that made me feel like I was writing endless research reports in law school(!!!), this potentially precedent-setting case officially settled last Friday, October 8. (You can read a summary of the roller coaster ride at the beginning of this previous blog.)

So what happened to suddenly bring about this seemingly last-minute settlement after five years of legal struggles?

Sadly, cancer happened—specifically colorectal cancer, stage three. Ty Templeton got the diagnosis back in May of this year, and it was serious news. In June, he posted this blog, with Ty’s cartoon bunny “alter ego” explaining that his cancer would be inoperable until he went through months of chemotherapy and radiation treatments. He was still “on the winning side of the odds,” but it wasn’t going to be an easy time for him.

He actually went in for surgery last Wednesday, and I am told that it went well. Let’s all please keep Ty in our thoughts and prayers.

In the meantime, things were heating up in the lawsuit. Back in May, ComicMix filed a Writ Of Certiorari to the Supreme Court asking them to review the case and overturn a devastating appellate opinion by a 3-judge Ninth Circuit panel ruling that Boldly was not considered to be fair use. On June 21, the Supreme Court declined to hear the case, leaving the most recent appellate ruling in place and sending the case back to the original judge.

Then in August, with the case once again in the Ninth Circuit courtroom of Judge Hon. JANIS L. SAMMARTINO, she denied both the Plaintiff’s motion for summary judgement of the case (refusing to simply rule that Team Mash-up was liable for damages and ending the lawsuit with a pre-trial win for DSE) as well as the Defendant’s motion to consult with the U.S. Registrar of Copyrights because ComicMix believed that DSE’s copyright registrations for the Sneeches and the Zacks may not have been properly filed and might have fallen into the public domain. Obviously, it’s hard to infringe on something that is no longer copyrighted, but alas, that motion wasn’t granted either.

By denying both of those motions, the next step—after nearly half a decade!—was to argue this case in front of a jury. ComicMix’s job: convince 6 to 12 Californians that the “total concept and feel” of Boldly was NOT similar enough to Dr. Seuss’ works to find infringement. DSE’s job: lead the jury to the opposite conclusion.

It would be a hard-fought lawsuit, to be sure! Both parties and their attorneys believe passionately that their side is in the right. DSE is fighting to protect themselves from potential future mash-ups of Dr. Seuss with all manner of other properties—Star Wars, Marvel or DC Superheroes, Bugs Bunny, Indiana Jones…who knows what else! ComicMix is not only fighting to save themselves from potentially having to pay tens or even hundreds of thousands of dollars to DSE but also to protect a relatively new art form—the “mash-up”—as an exercise of protected speech rather that copyright infringement. One way or another, the outcome of this case had the potential to be a huge game-changer for years or even decades to come!

And even if ComicMix were to lose, there is another case that IS, in fact, going in front of the Supreme Court (Unicolors, Inc v. H&M Hennes & Mauritz, LP this November) that could possibly give Team Mash-up grounds to appeal. This case could still drag on for years!

But what about Ty Templeton?

Six months of chemo and radiation therapy had already taken its toll on him, and last week’s surgery was far from the end of the road to recovery. Just the opposite, in fact. After a few weeks of recovery, he’ll back be to receiving six MORE months of chemo and radiation preparing Ty for yet another major surgery in the spring. To have to endure a demanding and unpredictable jury trial while in this weakened conditioned…well, even DSE agreed that was unnecessarily cruel. It was the moment in the after-school special when both sides stop fighting and come together to do something they both agree is for the best.

In a statement posted to the ComicMix website, Glenn Hauman wrote of Ty’s cancer…

This has affected his ability to work, to draw, and to do any of the things an immunocompromised person shouldn’t do, especially in the middle of a global pandemic.

And the trial schedule would have been smack in the middle of all of that. After five years of sometimes ridiculous litigation and with the pre-trial deadlines looming, as Ty’s collaborators and friends, we refused to put him through any additional stress that could in any way impinge on his health and recovery. To the credit of the people at DSE, they didn’t want to put Ty through that either. So we joined in a motion to end the suit the day before Ty’s surgery, in order to alleviate the less serious pain in his ass so he can deal with the far more lethal and literal pain in his ass.

A rather colorful way to describe it, but it pretty much sums up what brought both sides to shake hands and walk away after five years of passionate animus and hundreds of thousands (possibly over a million) dollars of legal fees.

At this point, I’d like to interrupt this blog and show you all this get well note that was given to Ty on October 7, after his surgery…

In addition to fellow Team Mash-up defendants Glenn Hauman and David Gerrold, two other prominent folks added their signatures: WILLIAM SHATNER (about to leave for space on some kind of star trek) and GEORGE TAKEI. Cancer sucks, but it’s nice to know that two members of the original Star Trek cast are pulling for you!

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The agreement (a consent judgement and permanent injunction, which you can read here) effectively ends the lawsuit with a partial “win” for DSE—the court will find that Boldly is infringement—but that ruling includes no financial penalties against Team Mash-up (also a partial “win” for the Defendants). Neither side gets everything they wanted.

Sadly for fans wanting to see this book in its entirety, ComicMix and its officers, affiliates, directors, agents, servants, employees, heirs, successors and assigns agree not to try to publish or sell any part of Boldly or assist in its distribution by others in any way as long as DSE maintains its copyrights. What this means, according to that statement from ComicMix…

We won’t be able to present Oh, The Places You’ll Boldly Go! to you for another forty years, when the Dr. Seuss copyrights are set to expire and his books enter the public domain. (We can start taking preorders in January 2062, so set your calendar reminders now.)

I will be older than Shatner is now by 2062, but I do intend to pre-order my copy when I turn 95-years-old.

In exchange for this concession by Team Mash-up, DSE agrees to waive any damages or legal fees. Granted, if the Defendants had won at trial, they’d pay nothing anyway. But that’s a big “IF.” This is now a guaranteed $0.00 judgement against an opponent who had every intention of making an example of these guys.

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What’s my final take? I’ve learned though the years of being “attorney adjacent” that going in front of a judge, and especially a jury, is usually something to be avoided at all costs. Along with saving on exorbitant attorneys fee, settling a lawsuit provides certainty and closure. A jury is always unpredictable, and even verdicts can be appealed, costing each side even more money in litigation fees. In fact, most times much more money is spent NOT settling (and going to trial) than settling…unless you win a huge monetary award. And in this case, ComicMix was never going to get that from DSE. The best they could “win” was pride, a feeling of vindication, and permission to crowd-fund $30K to print maybe 5,000 books and move on with their lives. Was that worth the risk?

Keep in mind, the Defendants’ potential exposure was huge, and it wasn’t like DSE was ever going to simply give up. Their lawyers would chase Team Mash-up round the moons of Nibia and round the Antares maelstrom and round perdition’s flames before they would ever let this go. Granted, there’s a massive range of monetary judgements that come with a finding of infringement, from just $750 up to $30,000 per work (and DSE claimed three works were infringed upon). So ComicMix could have escaped with a couple of thousand dollars in statutory damages or as much as $90,000! And if the more serious “willful infringement” was found, then a maximum of $150,000 per work could have upped damages to close to a half million dollars!!! And that’s not including attorneys fees, although there’s no guarantee of having those tacked on.

Most likely, though, a verdict against Team Mash-up wouldn’t have been that bad. Awards in infringement cases aren’t supposed to be harsh or punitive, and judges are usually sensitive to how much a defendant is able to pay. But in the end, was the reward (vindication and freedom to publish…after a probable appeal and more years of expensive courtroom battles) work the risk and the cost?

And on DSE’s side, a win’s a win. They get their infringement ruling, which is what they really wanted all along. They’re a very successful company and not hurting for money—and as I said, it likely wouldn’t have been all that large of a damages award if DSE did win. Also for DSE, there was some risk involved, as well. As I said, juries are unpredictable, and southern California juries tend to be very liberal and often side with “David” over “Goliath.” And of course, having one of the defendants having to testify remotely because he was undergoing year-long treatment for stage 3 cancer might have engendered a sympathetic response from the jury. “Why add to this poor man’s pain and suffering with a loss in court?” the jury might think. So DSE was definitely smart to settle this, too.

Finally, I’ll leave you with the following thought from Glenn Hauman on the legal mountain that Team Mash-up tried to climb. They may not have reached the summit, but for future mash-up creators and a potential new art form still in its infancy, the journey has only begun…

While we’re not entirely pleased with the case’s outcome, we remember the words of historian Richard Hofstadter, who observed that sometimes people must “endure error in the interest of social peace.” If we were ultimately unable to persuade the Ninth Circuit to reduce the amount of error involved in determining fair use for creators, we’ve done what we can to forge a path for future fair use activists.