Fan Film Factor

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!

This Thursday at 1:30pm Pacific Time, the two sides in the ground-breaking DR. SEUSS/STAR TREK mash-up lawsuit will meet in front of Ninth Circuit Federal Judge HON. JANIS L. SAMMARTINO in courtroom 4D of the Edward J. Schwartz Courthouse in San Diego, California.

Last month, I reported the hearing date as January 31. But the lawyer for the defense caught the flu and requested, and was granted, a one-week delay (which is not all that unusual).

In a previous blog, I discussed the history of the case, and what each side is asking the judge to do. In short, the defense wants the judge to end the case before it begins next month…in favor of the defense, of course. This would mean her ruling that their mash-up Oh, The Places You’ll Boldly Go! should be considered (as a matter of law) to be FAIR USE and therefore protected speech. Therefore, any copyright claims would be nullified, and Team Mash-up (DAVID GERROLD, TY TEMPLETON, and their publisher COMICMIX) would be free to publish their book without legal liability. Also, the defense wants the remaining two claims of trademark infringement (different than copyright) dismissed because it is not reasonable to trademark an artistic “style” nor the look of a typographic font.

The plaintiffs, DR. SEUSS ENTERPRISES (DSE), are trying instead to convince the judge in this case to do the same thing that was done in the AXANAR lawsuit: declare that the mash-up is not Fair Use and, therefore, cannot be defended as such. Likewise, they want the judge to rule that, yes, it is reasonable to hold a trademark on an artistic style and a font. This wouldn’t necessarily end the case (unlike the defense motion,) but a favorable summary ruling by the judge would make the lawsuit all but unwinnable for the defense…as happened previously with Axanar.

So why have I given this case so much attention?