ComicMix will sell an UNLICENSED book of “lost” DR. SEUSS short stories now in the PUBLIC DOMAIN!

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…!

Continue reading “ComicMix will sell an UNLICENSED book of “lost” DR. SEUSS short stories now in the PUBLIC DOMAIN!”

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…

Click to enlarge.

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.

Eisner Award winning artist Ty Templeton

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.

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

Meanwhile, the “STAR TREK/DR. SEUSS” infringement lawsuit moves forward in district court…

If you read my previous blog, not only are you probably one step closer to earning your law degree, but you now know that “Team Mash-up” (tribbles-creator DAVID GERROLD, artist TY TEMPLETON, and ComicMix head-honcho GLENN HAUMAN) have petitioned the Supreme Court of the United States to review the ongoing infringement lawsuit originally filed against them in 2017 by DR. SEUSS ENTERPRISES (DSE).

For more background on the case, read this update from last month. In short, the judge in the case, Hon. JANIS SAMMARTINO, ruled in 2018 that Oh, the Places You’ll Boldly Go! qualified as fair use and was therefore protected speech under the Copyright Act of 1976…and dismissed all of the infringement complaints from DSE. Not surprisingly, DSE appealed to the Ninth Circuit Court, and a three-judge appellate panel reversed Sammartino’s decision, ruling instead that Boldly was NOT fair use and remanding the reinstated lawsuit back to the lower court for reconsideration.

For the moment, we’re going to skip the whole petition to the Supreme Court part (which I covered yesterday) and focus solely on what is now happening back in Judge Saamartino’s courtroom…virtually, of course, as most California courtrooms are still operating via Zoom calls. Almost as soon as the appeals ruling came down, both the plaintiff and the defendant prepared new motions for Judge Sammartino (a motion is when one party or the other asks a judge to make a ruling), motions that were filed at the beginning of last month. Again, read my update for a deeper dive into what each party is asking the judge to rule on.

When a motion is filed in writing with a judge , the other side has 15 days to respond in writing with an opposition to that motion, usually arguing why the first party is wrong. Then, after the opposition is filed, the first party gets two weeks to file a reply and explain why they are not wrong and the judge should grant their motion.

In fact, this is how ComicMix “won” the lawsuit back in 2018 when they filed a motion for dismissal with Judge Sammatino, asking her to rule that Boldly was fair use and therefore protected from a charge of copyright infringement. After a year and a half of back and forth arguing, she finally agreed and dismissed the case, granting the defendant’s motion. But on appeal, her ruling was reversed, and now the case is back on her desk…only this time with the Ninth Circuit Court of Appeals ruling that Boldly is NOT fair use.

Armed with that shiny new appellate decision, DSE immediately made a motion for summary judgment: skip the trial, Judge, ’cause we obviously just won…and give us our money now. But ComicMix also filed a motion based on their belief that copyright registrations for two of the Dr. Seuss books that they allegedly infringed were never properly filed back in the 1960s and have since expired. If so, that’s a bombshell.

Let’s take a look now at each motion, and how the other side is arguing against it…

Continue reading “Meanwhile, the “STAR TREK/DR. SEUSS” infringement lawsuit moves forward in district court…”

STAR TREK/DR. SEUSS “Team Mash-Up” appeals to the U.S. SUPREME COURT!

Oh, the places you’ll (boldly) go!

For tribbles-creator DAVID GERROLD, artist TY TEMPLETON, ComicMix head-honcho GLENN HAUMAN, and DR. SEUSS ENTERPRISES (DSE), there’s now a chance that one of those places will be the Supreme Court of the United States of America!

You may ask yourself: “Well, how did I get here?” The shortest I can make the answer is this…

  • In 2017, DSE sued ComicMix (et al) for copyright infringement for trying to mash-up Star Trek and Dr. Seuss in a crowd-funded book titled Oh, the Places You’ll Boldly Go!
  • “Team Mash-up” argued their work was protected under the legal doctrine of fair use.
  • Nearly two full years into the lawsuit, Ninth Circuit District Judge Hon. JANIS SAMMARTINO ruled that Boldly was indeed fair use and dismissed the lawsuit before there was even a trial.
  • DSE appealed to a three-judge panel of the Ninth Circuit. A year later (2019), they ruled that Boldly was NOT fair use and remanded the revived lawsuit back to Judge Sammartino’s courtroom where fair use could no longer be used as a defense.
  • In a motion filed last month, DSE asked the judge to just declare them the winner (again, without going to trial) and award DSE $225,000 in damages.
  • Team Mash-up also filed a motion asking for a review of the copyrights for two of Dr. Seuss’s books (that they allegedly copied). Specifically, ComicMix requested a review by the U.S. Registrar of Copyrights because the Sneeches and the Zacks may not have been properly registered and might have fallen into the public domain!

And if you want to do a deeper dive, especially into those last two bullet points, check out this blog.

Okay, a LOT has happened in the last six weeks, and it’s hard to know where to start! When a motion is filed, the other side gets to file an opposition argument, and then the first side gets to reply to that response. So ComicMix has now argued why they think this trial is far from over and they should NOT have to pay $225,000 to DSE. And DSE has argued that ComicMix missed their chance to ask for a copyright review and is now royally screwed.

Oh, and ComicMix just petitioned the United States Supreme Court to review this case! You guys are definitely gonna want me to start there, aren’t ya…?

Continue reading “STAR TREK/DR. SEUSS “Team Mash-Up” appeals to the U.S. SUPREME COURT!”

Bombshell in the Star Trek/Dr. Seuss MASH-UP infringement lawsuit: are SNEETCHES and ZAKS in the PUBLIC DOMAIN???

Copyrights don’t last forever. Unless they are properly renewed, they eventually expire. And when they do, the works those copyrights protected fall permanently into the public domain, free for everyone to use without fear of infringement lawsuits.

Is this the case with some of the most beloved creations of the late children’s book author DR. SEUSS? Can you or I use the Sneetches or the Zaks in any way we’d like? If so, the ramifications in the current Star Trek/Dr. Seuss mash-up lawsuit (and beyond) could be staggering!

Okay, a brief recap of where we are. After getting sued for copyright infringement by Dr. Seuss Enterprises (DSE) for trying to mash-up Seuss drawings with Star Trek characters and calling their book Oh, the Places You’ll Boldly Go! (or “Boldly,” for short), publisher ComicMix, along with Tribbles creator DAVID GERROLD and artist TY TEMPLETON, appeared to have won. In March of 2019, Ninth Circuit Judge Hon. JANIS SAMMARTINO dismissed the case having found that Boldly qualified for protection under the doctrine of Fair Use.

So DSE appealed the ruling, and this past December, a 3-judge appellate panel of the Ninth Circuit unanimously agreed that Boldly was NOT Fair Use and sent the case back to Judge Sammartino’s courtroom with the understanding that Team Mash-up could no longer rely on a Fair Use defense to save their Lorax.

Things looked really bad for Team Mash-up, but just as I and many others were about to count out ComicMix and company, they seem to have pulled an ace from their sleeve. Well, actually, it’s somewhere between an ace and a “Hail Mary” pass late in the fourth quarter, but whatever it is, it could be a total game-changer!

Let’s dive in…

In their latest renwed motion for summary judgement (meaning, “Don’t even waste everyone’s time with a jury trial, Judge, ’cause you know we won, so just give us our money now…”) from this past Friday, DSE is asking for a statutory award of $75,000 per work infringed, and they are claiming that THREE Dr. Seuss books were “slavishly copied”—Oh, the Places You’ll Go! (“Go!”), How the Grinch Stole Christmas! (“Grinch”) and The Sneetches and Other Stories (“Sneetches”). Some examples are as follows…

On the left, two pages from stories in “Sneetches”…and on the right, corresponding pages from “Boldly.”
On the left, a page from “Go!” (top) and “Grinch” (bottom)…and on the right, corresponding pages from “Boldly.”

So that’s 3 x $75,000 = $225,000 in potential damages awarded to DSE that ComicMix would have to pay…and possibly attorneys fees, as well. Yeesh!

Now, before I tell you how Team Mash-up is planning to get out of this predicament, we need to go over two VERY important things…

Continue reading “Bombshell in the Star Trek/Dr. Seuss MASH-UP infringement lawsuit: are SNEETCHES and ZAKS in the PUBLIC DOMAIN???”

The news is mixed (but pretty bad) for ComicMix as they both lose and win the DR. SEUSS/STAR TREK Mash-Up appeal…

For tribbles-creator DAVID GERROLD, award-winning comic artist TY TEMPLETON, and ComicMix publisher GLENN HAUMAN, last Friday was not a fun day. While there was one tiny piece of good news in their ongoing legal struggle with DR. SEUSS ENTERPRISES (DSE) regarding the Star Trek/Seuss mash-up Oh, The Places You’ll Boldly Go! (“Boldly” for short), the main part of the news was rather unfortunate.

Things looked rosy for ComicMix back in March of 2019. After nearly two years in litigation, Ninth Circuit Federal Judge Hon. JANIS SAMMARTINO ruled before the trial could even begin that Boldly was protected from DSE’s infringement lawsuit because she considered it to be Fair Use. (You can read an in-depth analysis of that ruling here.) She threw out DSE’s complaints for both copyright infringement as well as for trademark infringement (two different things), effectively ending the lawsuit before a jury could even be seated.

Five months later, DSE filed an appeal to the Ninth Circuit, trying to reverse the summary ruling from Judge Sammantino. Last Friday, a three-judge appellate panel came back with a unanimous decision that Boldly did NOT qualify as Fair Use, and so the copyright infringement lawsuit could proceed. The panel also ruled that the summary dismissal of the trademark infringement decision was indeed correct, and so that aspect of the lawsuit is over. (You can read the full appellate opinion here.)

So…good news/bad news, right?

Well, it’s much more bad news than good, I’m afraid. The trademark claim was always the thinnest of arguments, and even DSE didn’t push hard on that point during their appeal (four amicus briefs were filed, and none of them touched at all on the trademark question). What DSE really wanted was the copyright infringement complaint reinstated, and they got it.


DSE hasn’t won yet. But now they haven’t lost either. We are simply back to where we were at the beginning of 2019 before the judge made her summary ruling. The lawsuit is on again, heading back to Judge Sammartino’s courtroom.

If you’re DSE, you’re ecstatic and holding all the cards right now. There will (most likely) still be a trial, but if you can convince three out of four learned judges that Boldly isn’t Fair Use, you should certainly be able to convince twelve ordinary folks of the same thing. And indeed, you might not even need to, since the appellate judges’ ruling might preclude using a Fair Use defense entirely (more on that in a moment).

Now, if you’re ComicMix, you have a decision to make, and you really have only three choices on the menu…

Continue reading “The news is mixed (but pretty bad) for ComicMix as they both lose and win the DR. SEUSS/STAR TREK Mash-Up appeal…”

Pandemic gives fans a rare glimpse into a FAIR USE courtroom hearing!

In the summer of 2016 when the AXANAR infringement lawsuit was still in full swing, I drove to the Federal Courthouse in downtown Los Angeles to attend a hearing of the Ninth Circuit in that case. I was the only guest in the “audience” and the only person in the courtroom other than the clerk who didn’t have a law degree!

Nearly all legal proceedings in America are open to the general public, but few citizens avail themselves of this right because—for non-lawyers and non-participants—most of these proceedings are nigh incomprehensible and boring.

But I was personally invested in the Axanar case and found the hearing absolutely fascinating! In fact, I suspect that, had more Axanar supporters lived close to downtown L.A. and didn’t have work commitments, they would have flocked to watch the trial…had the case not settled.

Now the COVID-19 pandemic has offered a unique opportunity to watch Federal Court hearings remotely. The judges and lawyers are all working from separate locations and dialing into a video conference, and those proceedings are being broadcast live to YouTube so the public can observe. The conference videos are also being recorded and kept available on YouTube. Nothing like this has ever happened before! [CORRECTION – Oops, got that one wrong. Then Ninth Circuit (and possibly some other courts) has been streaming oral arguments since 2014.]

As many of you know, I’ve been closely following the infringement lawsuit where DR. SEUSS ENTERPRISES (DSE) has sued COMICMIX and author DAVID GERROLD, artist TY TEMPLETON, and publisher GLENN HAUMAN for violating DSE’s copyright in trying to publish Oh, The Places You’ll Boldly Go! mashing up Star Trek and Dr. Seuss.

Long story short: DSE lost. (Long story long: read this.)

With a pre-trial summary judgment, Judge JANIS SAMMARTINO ruled that “Boldly” (as it was shortened) qualified for First Amendment protection on the doctrine of Fair Use. That was in March of 2019. In August, DSE filed an appeal of that decision. (And here’s a blog explaining that in detail.)

The thing about an appeal is that you can’t just say, “Hey, we didn’t like that verdict, so we want a do-over with a new judge!” Nope, you can only appeal if you feel the first judge made a mistake in interpreting or applying the law in some way (other than just deciding against you.)

In DSE’s case, the biggest mistake they felt was made by Judge Sammartino was in determining that they (DSE) had to prove that they would suffer financial harm if Boldly were to be published and sold. DSE felt that ComicMix should have had to prove that DSE would not be injured by the mash-up. But because the district judge reversed the direction of burden of proof, and DSE failed to meet that burden, they lost and Boldly was ruled Fair Use. (DSE also felt that Boldly wasn’t transformative and also used too much of the original Dr. Seuss source material, which they contend should overturn any Fair Use ruling.)

Continue reading “Pandemic gives fans a rare glimpse into a FAIR USE courtroom hearing!”

Dr. Seuss has appealed – they now want a do-over…so we’re at it again, get set for round two-over!

Just when you thought it was time to vamoose
From all of this talk of the law of Fair Use
Regarding the mash-up of Star Trek and Seuss
Here comes the sequel, we’ll call it “Part Deuce!

And with that, I shall stop rhyming…although I can’t say the same for GLENN HAUMAN of ComicMix, the folks who, this past March, won a copyright infringement lawsuit filed against them by Dr. Seuss Enterprises (DSE). You can read more about the judge’s final ruling here.

The case involved an illustrated “mash-up” of Star Trek and Dr. Seuss titled Oh, The Places You’ll Boldly Go! This proposed book was written by “The Trouble with Tribbles” author DAVID GERROLD and illustrated by award-winning comic book artist TY TEMPLETON…with ComicMix doing the publishing. Back in late 2016, they held a Kickstarter that raised $30,000 but were quickly shut down by DSE, who later sued. The nearly two-year legal battle was a back-and-forth rollercoaster ride, with the lawsuit eventually being dismissed after the judge ruled Boldly to be Fair Use.

As I pointed out at the end of that previous blog, DSE always had the option to appeal the decision to the Ninth Circuit…something they did just two weeks after I published that blog, on the same day the district court entered Hon. Judge JANIS SAMMARTINO’s ruling officially into the record. The Plaintiff’s notice of appeal also asked for, and was granted, an extension of a few months in order to file their opening appellate brief…all 81 pages of it! (No, you don’t have to read it…although it is pretty interesting and very well-presented.)

DSE also submitted four amicus briefs, which are opinions submitted to the court by non-litigants who, even though they aren’t part of the lawsuit, still have a vested interest in the outcome of the case. In this instance, DSE got help from two professors from the Berkeley School of Law, three members of The Copyright Alliance, the Motion Picture Association of America, and The Sesame Workshop (yep, Big Bird is buddies with The Cat in the Hat!). That’s another 140 pages to add to your summer reading list. They mostly say the same thing…essentially that the judge got it wrong and here’s why they think so (and why the law backs up their belief).

It’s a little early in the process for me to start making predictions. After all, this is only the initial brief (which is anything but brief!), and ComicMix hasn’t had its chance to respond yet. I will try to summarize what arguments are being made in the appeal, however. But before I do, since we now have the opening brief from DSE, I reached out to Glenn Hauman for an initial statement from ComicMix.

As he’s done previously, Glenn responded poetically (with some pretty decent rhymes—including one in Latin!)…

Continue reading “Dr. Seuss has appealed – they now want a do-over…so we’re at it again, get set for round two-over!”

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…?

Continue reading “Take that, DR. SEUSS; TREK MASH-UP is legally FAIR USE!”

NO TRUCE with DR. SEUSS on FAIR USE! (Part 2)

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!

Continue reading “NO TRUCE with DR. SEUSS on FAIR USE! (Part 2)”