Have you ever given a few bucks to a street performer? Maybe it was a guy juggling bowling balls while riding a 10-foot high unicycle…or a woman playing seven different musical instruments at the same time. The reason you might drop a few coins or dollars into their hat is that these folks entertain you. They’re talented, and they use those skills to bring some fun and joy into your day…and maybe show you something you probably don’t get to see very often (if ever).
What does any of this have to do with the proposed Oh, the Places You’ll Boldly Go! illustrated book mashing up Star Trek with Dr. Seuss? As you probably know, an infringement lawsuit was filed by Dr. Seuss Enterprises (DSE) against creators DAVID GERROLD, TY TEMPLETON, and ComicMix, which intended to publish the book. (To learn more about the lawsuit, read my latest update from a couple of weeks ago.) Recently, ComicMix launched a GoFundMe campaign to raise money to help pay the costs for their legal defense.
Obviously, the goal of Oh, the Places You’ll Boldly Go! is to bring some joy and fun into YOUR day…entertainment for Trek fans that will certainly never happen if the verdict in this lawsuit goes against ComicMix and “Team Mash-up.” But to make things even more entertaining, ComicMix’s own GLENN HAUMAN wrote the whole GoFundMe description ENTIRELY IN RHYME. (Seriously, check it out…it’s pretty amazing!)
But Glenn’s not done rhyming yet…!
As many of you know, I’ve been very interested in this lawsuit, having written a series of blogs over the past year covering the fascinating, often-unexpected developments and rulings that have emerged.
So naturally, when I saw the new GoFundMe, I reached out to Glenn and asked for an interview. Glenn has a very extensive pedigree as a Trek and sci-fi fan, having worked on Star Trek CD-ROMs and e-books for Simon and Schuster and co-authored the story “Redemption” with Lisa Sullivan for the Star Trek: New Frontiers anthology No Limits. Oh, and Glenn also had the first-ever Klingon/Jewish wedding…so he’s no stranger to mash-ups! (You can read about all of Glenn’s sci-fi/comic professional accomplishments here.)
Glenn agreed to the interview, and so I prepared a series of in-depth questions. To my surprise (and delight), Glenn’s answers came back written—once again—entirely in rhyme!
Trust me, guys, that is NOT an easy thing to do (I’ve tried it). In fact, it’s why I brought up street performers. Whether or not you agree with the cause of protecting the new art form of the mash-up (something I thoroughly endorse!), I’d ask you to consider throwing a few bucks toward this GoFundMe if for no other reason than as a show of appreciation for the amount of work Glenn has put into writing up these informative—and poetic!—interview answers…
JONATHAN – What is the current state of the lawsuit? Are any motions by the parties are still awaiting the judge’s decisions/orders?
GLENN – Tom Petty said something that we took to heart,
cuz it’s true that “the waiting is the hardest part.”
We’re lining up witnesses that will rebut
the claims that Seuss made, and make ours clear cut.
We deposed Seuss’s president— a transcript I can’t see
on judge’s orders, it’s “Attorneys’ Eyes Only!”
As if DSE’s business faces grave risks
if exposed to me, David, Ty, or ComicMix.
Do we have other actions before the trial’s starting?
Sorry, that’s strategy we’re not imparting.
JONATHAN – Why is this particular case so important for people to pay attention to and, more importantly, to support both emotionally and (now) financially?
GLENN – People claim they want critiques, but only want praise—
and fair use protects us, as critiques abrase.
Thanks to copyright fair use, we all have the right
to comment, report, criticize, or make light
by citing their works—but some want to prevent
such usage by claiming we steal their content.
As it turns out, there’s just no precedent
about the expressions our mashups present.
Our case is a leading one, one which could stake
the boundaries of mashups you’re allowed to make.
In law, you don’t want to make bad first impressions—
and that’s why we HAVE to fight. Hence, no concessions.
If we lose, then ALL mashups may go through the thresher
and may be deemed infringement. (But hey, no pressure.)
Think! No more fan films, no visual arts
using any prior work—even small parts!
Even the lawyers here repping these clients
must admit artists stand on the shoulders of giants!
JONATHAN – ComicMix is currently trying to raise $25,000, with only 10% donated so far. What happens if you don’t make your goal? Does ComicMix have to give up and be found liable? Do you go bankrupt trying to pay legal fees?
GLENN – It’s tough to say now, if we don’t make our goal,
how much deeper we have to go into the hole.
We scrape day by day, feeding our legal fund,
in the hopes in this area we’re not outgunned.
We’re a little surprised other businesses that
make their money from mashups haven’t dropped in the hat.
TeePublic, RedBubble, Funny Or Die,
Threadless, Ript, TeeFury—all of them, shy.
Do they think that they’re safe? Do they think they’re immune
if deep-pocketed people don’t like their lampoon?
(We will say there’s a source of cash that looked inviting
But Seuss would claim that we were further inciting.)
JONATHAN – Why didn’t ComicMix simply try to purchase a license from DSE (and CBS) in the first place rather than risking a lawsuit? (Sorry, gotta include some hardball questions, Glenn.)
GLENN – (The questions aren’t hard, it’s the rhyming that’s tricky—
it makes all my linguistic choices quite picky.)
Quite a reasonable question to put forth—and yet,
if we asked for a license, just what would we get?
We use no Seuss characters, plot’s been around
since Greeley told men to “Go west!” out of town.
They don’t own the meter, they don’t own the “font”
or art style, or anything else we would want.
We remind that for factor three, already pleaded,
the judge ruled that we used no more than was needed.
It seems like the privilege of not getting sued
is the license that DSE offers—quite rude.
To Dr. Seuss Enterprises, we’re unwashed—
they don’t want to license, they want our work squashed.
And this work is fair use! We don’t need permission!
We had creative license—and followed our vision.
JONATHAN – Considering that your original Kickstarter took in only $30,000 (before being shut down, and I’m assuming you got nothing), and you’re now looking for crowd-funding assistance to help fund your legal defense, haven’t you folks lost more money than you’re ever likely to make, even if you win? Wouldn’t settling be easier, cheaper, and safer?
GLENN – Easier, cheaper, and safer sounds sensible,
but sometimes you have to stand up for a principle.
Why should we settle? We’ve done nothing wrong.
Fair use was a thing before we came along.
And we don’t think that wealthy folks should use their money
to veto those parodies they don’t find funny.
Seuss does this a lot—I could mention a play
that they tried to shut down, it’s called “Who’s Holiday.“
The playwright fought back and he took them to court
and proceeded to use Seuss’s poor case as sport.
Seuss lost that case badly, on trial and appeal,
because New York courts wouldn’t fall for their spiel.
We hope for a similar outcome in ours,
well within judicial reason and powers.
JONATHAN – Do you regret saying the following in the Risks and Challenges section of your original Kickstarter?
“While we firmly believe that our parody, created with love and affection, fully falls within the boundary of fair use, there may be some people who believe that this might be in violation of their intellectual property rights. And we may have to spend time and money proving it to people in black robes. And we may even lose that.”
GLENN – Not at all, not a bit. In the words of Jim Kirk,
“Risk is our business.” We think that the work
is clearly fair use, and we think you’ll agree
as soon as a ruling allows you to see.
JONATHAN – I probably can’t ask you about your legal strategy, but couldn’t you avoid at least one of the trademark arrows by simply promising to change your typeface to something like this or similar…?
Or is it too late for that? (I ask because you haven’t actually published a book yet.)
GLENN – We sent final drafts early in our exchanges,
But they filed suit rather than ask for some changes.
“Clearly they don’t want to deal in good faith!
They’d rather suppress us!” At least, so we saith.
It seems that when it comes to matters parodic
DSE’s vision is really sclerotic.
JONATHAN – (WOW…”parodic” and “sclerotic.” You are taking this rhyming thing incredibly seriously! Where’s my SAT study guide???)
Okay, following up on my previous comment, technically, aren’t you being sued for something you haven’t produced yet? Isn’t that like getting a speeding ticket before you turn on your car engine?
GLENN – You noticed that too! We’re not the only one
who sees Seuss is suing with no damage done.
As such, they’re claiming damage statutory,
an attack that we think is quite predatory.
We think that they’re making a bogus complaint
to justify such strong-armed prior restraint.
JONATHAN – And finally, what do you say to folks who call you “parasites” and tell you to “just create your own original IP” instead of stealing someone else’s?
GLENN – We’re not angry with them, we’ll live and let live
and remind them the judge ruled it transformative.
We wish we could show them the book (since it’s done)
And change their opinion to an informed one.
But sight unseen, their hot takes are made of
balloon juice… conjecture, and all speculative.
The judge, who HAS read it, found it creative.
It’s not parasitic… it’s more pollinative.
C’mon, guys, “pollinative” for goodness sakes!
Glenn just put his all into a truly fantastic set of answers…
entertaining, informative, and downright inspired.
To me, this fellow should be truly admired!
If for no other reason than they’re trying their best,
to convince you they do pass that ol’ Fair Use test—
Can you look in your heart as they go to the mat,
And maybe, just maybe, toss a coin in their hat…?
Click here to help donate to keep the legal defense going!
Of course I will donate. Of course I will share.
After all, we must ALL help keep’fair use’ as fair!
I get out the money, I open my wallet
to help fund the legal fees, as you would call it.
I see that you’ve donated,
You’re to be commended!
Now let’s hope they get more
Before this lawsuit is ended… 🙂
While I am appreciative of the effort and creativity shown by Glenn in answering in rhyme, I found the format to be quite annoying. If he’s going to answer in this way again, could you consider following up his responses with sentences in a more normal, straightforward and easy-to-understand way?
Nobody’s really at fault here, and the concept was really kind of novel, but it kinda irritated me. You’re discussing legal ideas and strategies and I think the trick got in the way of the explanation and comprehension of what Team Mash-Up is going through.
I think it got a little too cute for the room.
No harm, no foul.
In this time crowded with crowd-funders,
You need to do something to make you stand out.
Some people shout.
Others get funny.
Glenn decided to rhyme for his money.
Annoying? Perhaps.
Then again, so was Seuss!
The book “Fox in Sox” is just
Tongue-twister abuse!
In the end, we’ll just see
If Glenn’s crazy or sane.
And worse comes to worst?
He can answer again…
…without rhyming. 🙂
Wow what a great tour de force,
such poetic answers to suit course.
I am in awe of Glenn’s ability
to respond with such civility.
Thank you for a remarkable poesy day
I’m hoping the suit his side doth slay.
And the rhymes just keep right on coming! 🙂
My views on this case are a little split,
So perhaps I should explain a little bit.
The trouble is answering in rhyme,
I’m not quite sure I have the time.
But, perhaps, if I take it at a run,
It’ll be alright, maybe even fun!
I think the problem lies with two things as far as I can see.
How much money you make and how much it costs the owners of the IP.
In this case the book looks rather good, not a piece of trash.
It should do well,in fact it could make a lot of cash.
Furthermore, what can cause problems, what might be cause for abuse,
Is that you might buy their book rather than one about Star Trek, or one by Dr Seuss.
The probem in a nutshell I suppose,
Is that old case of treading on too many toes.
Hopping off the rhyming train for a moment…
I’d like to tackle your points one-by-one:
1) “It should do well, in fact it could make a lot of cash.”
The thing about Fair Use is that you’re legally ALLOWED to make a lot of cash if your work is deemed to be Fair Use. For example, Mad Magazine, which is all parody (protected Fair Use) had made a TON of money since 1952 and never licensed any property that it lampooned.
2) “Is that you might buy their book rather than one about Star Trek, or one by Dr Seuss.”
That’s a someone dubious legal claim to argue in court for a couple of reasons. First, it assumes that the buyers of Dr. Seuss books (mainly parents and grandparents buying for children) would be the same customers who would purchase a Star Trek book. That’s a bit of a stretch. As for not buying a Trek book, remember that this lawsuit is from Dr. Seuss Enterprises, not from CBS. So that argument is irrelevant right now.
The second point, however, is much easier to grasp. It’s impossible to prove financial harm from something that hasn’t happened yet. The mash-up hasn’t even been published, and DSE is seeking damages based on the harm it has caused them! What harm? I never bought the book…did you? Of course not, because it doesn’t exist yet. In that way, the lawsuit is premature. As I said in the blog, it’s like giving someone a speeding ticket before they even turn on the car engine. So while it’s possible that someday, maybe, perhaps, possibly, someone might see the mash-up book and buy it INSTEAD of buying the Seuss book (which will likely be hard, since the mash-up won’t be on children’s book shelves but will instead be available–if it’s allowed to be published–only through the Internet and maybe at conventions), that hasn’t happened yet. So DSE claiming financial damages is a tough sell…at least in my mind.
One last point…
Something Glenn said convinced me even more than I already was that this case is NOT infringement. To infringe, you need to use characters, text, exact replicas of illustrations or photographs, etc. without permission. Which Dr. Seuss character did Team Mash-up use exactly? What text did they copy? Were their illustrations similar? Yes. Was their title similar? Yes. But the judge ruled that the title is protected speech. Is the illustration “style” protected by copyright? If so, exactly what makes the two Spocks look like the two Zaxes? Just where was the line crossed? This case runs the risk of making copyright protections too broad when artists can claim ownership of an entire “style” of illustration.
But for me, when Glenn asked what exactly would ComicMix have licensed, I thought: “Yeah! What indeed? They didn’t use the Cat in the Hat or the Lorax or Horton the Elephant. What exactly DID they need to license?”
I’ll dispense with the rhyming too, it was fun (and I’m quite pleased with the result :)) but I wouldn’t want to make a habit out of it.
First off, thanks for the detailed reply. The rhyming does make light of what is actually quite a complex issue, to me at least.
I’m not a lawyer, but taking all your points into consideration I think I still sympathise with why this case was raised. I know, as an engineer, you can apply for design protection for a product. It’s pretty flimsy compared with a patent but you can sometimes pick out key aspects that make your product distinctive. I guess it’s the same sort of thing here.
Now, whether it’ll stand up in court I don’t know. You have pointed out an example of where this was done before. I suspect you have a better idea than I do. I’m certainly not rooting for Seuss in this case, I’m sure they could let this one pass and, who knows, it might even encourage sales.
It’s an interesting case as a bystander. I’m glad I’m not involved though.
Respectfully, Im afraid I’m not quite won over. But I’m intrigued by what the ruling will be and whether I need to adjust my own thinking. Keep up the reports!
If you’re intrigued enough, Alastair, I heartily recommend you read some of my previous blogs on the subject. They explain quite a lot of what is going on (and I write in fan English rather than boring legalese). There are links to my previous blogs in the text of the current blog above.
I have been reading – honest! And, yes, I can recommend them too. As you say you do give the average reader a fighting chance of understanding what’s going on. I will be staying tuned.
I think DSE should sue this blog for rhyming infringement.
It would make as much sense to their present case.
I would wholly support this GoFundMe solely on principle if friends had not already tried and continue to try to help my daughter and I with GoFundMe/Generosity campaigns going on three years now. https://www.gofundme.com/newlife4wysoka Frankly I have totally run out of avenues to appeal for help.
But, yes, being strong-armed is not the way forward in any healthy economy.
I just donated $20 to your GoFundMe, Richard. I wish you and your family all the best. Anyone else reading, please check out the link above and consider making even a small donation to help these folks.
Hi Jonathan! Thank you very much for your donation. That is very kind of you and it gives us all, my family and friends, a nice boost to the spirit to see. Sometimes I do not know what is worse, the stress of the situation we live under here, or the despair of the fund raising. Thank you very much Jonathan. I cannot express my gratitude enough. It’s Saturday morning cartoons time here, The Ghostbusters (Spencer, Tracy, Kong) is playing now, and my daughter says “thank you” too. It cannot be said enough.
I hope you and your family can find your way to Canada. If you have any friends with cameras that you can use to post a photo or video message, it might go a long way toward helping you get more donations.
Is anyone, ANYONE AT ALL, the least surprised
that dear old Sandy was the one who criticized?
Not me. Not in the least. 🙂