Tag: Lawsuit

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!”

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!”

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)”

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?

Continue reading “NO TRUCE with DR. SEUSS on FAIR USE! (Part 1)”

Yesterday, I recounted the two-year history of Star Trek‘s “other” major infringement lawsuit. Back in 2016, tribble creator DAVID GERROLD and comic book artist TY TEMPLETON teamed up to create what they considered to be a parody mash-up of Star Trek and Dr. Seuss, a book they intended to call Oh, the Places You’ll Boldly Go! Along with publisher ComicMix, they launched a Kickstarter which took in about $30,000 before being shut down when Dr. Seuss Enterprises (DSE) sued all three of them for both copyright and trademark infringement. No money was ever collected from the crowd-funding campaign.

It’s just over two years later, and after a roller coaster ride for both plaintiff and defendants (see Part 1), we’re now in the final weeks before the start of the actual trial in early spring.

Or are we?

Following long months of motion-filing, jockeying for position with Judge JANIS SAMMARTINO of the Federal Ninth Circuit, and collecting pre-trial testimony and documents from witnesses during the discovery phase, it’s time for one final “Hail Mary” pass from each side.

Yesterday, I reviewed the defense team’s motion to dismiss the case (read it here in its entirety) on the grounds that DSE didn’t really prove any realistic monetary damages (meaning that the mash-up should be considered as Fair Use and the complaint dismissed) and also that DSE’s remaining two trademark claims from font and art style weren’t valid. The defense arguments were solid and generally convincing…at least to me.

But then I read through the plaintiff’s motion for summary judgment. Like the defense team, DSE would like this case to end before it ever goes to court (and they rack up another six figures in legal bills!). But while Team Mash-up wants the judge to dismiss the lawsuit entirely, DSE would prefer the judge to rule that the defendants are obviously liable for multiple counts of willful copyright and trademark infringement and should be forced to pay hundreds of thousands of dollars in damages. And why trouble a jury when the final verdict is so obvious?

Are the plaintiffs as convincing as the defendants? Let’s take a look…

Continue reading “Major FAIR USE showdown coming in DR. SEUSS/STAR TREK copyright lawsuit! (part 2)”

Many Fans down in Fanville like mash-ups a lot.
But Dr. Seuss Enterprises, or DSE for short, did not.

DSE owns the rights, it isn’t in question,
to the late Dr. Seuss’ entire literary collection.

So when David Gerrold, the man who created the tribbles,
tried to mix Seuss and Star Trek, DSE had their quibbles.

In fact, they filed a federal suit,
for infringement of copyright…and trademark, to boot!

The defendants were Gerrold and his artist, Ty Templeton.
They also named the publisher, to add to their fun.

The publisher’s name, by the way, was ComicMix,
and if you ask me, DSE is a real bunch of…

Okay, I’m going to stop blogging in rhyme now.  Instead, let me tell you about some major developments in the Dr. Seuss/Star Trek mash-up lawsuit.  On December 11, both the plaintiff and defendants filed 20-page briefs (memoranda) supporting their latest motions before the judge.  A hearing is scheduled for January 31 at 1:30pm in the San Diego courtroom of  Hon. Janis L. Sammaritno, federal judge on the Ninth Circuit (the same circuit that had jurisdiction in the Axanar lawsuit, although a different judge than Axanar had).

Judge Sammartino’s rulings on these pre-trial motions could affect this case in VERY significant ways.  If she grants the defense motion for summary dismissal, the case could be over or potentially cut off at the knees for the plaintiffs.  On the other hand, if she grants the plaintiff’s motion, “Team Mash-up” (as I like to call them) could lose before ever going before a jury.  The stakes are as high as they’ve ever been.

As usual, I’m happy to break this down from legalese to English for those who want to know the score…

Continue reading “Major FAIR USE showdown coming in DR. SEUSS/STAR TREK copyright lawsuit! (part 1)”