Constitution Daily

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Dr. Seuss in the land of Fair Use lawsuits

January 4, 2018 by Scott Bomboy


What is the difference between a parody and a satire? Two recent court cases involving the estate of Theodor Geisel aka Dr. Seuss illustrate a complex answer to that simple question.

The beloved author of “The Cat in the Hat” and “Green Eggs and Ham” died in 1991, but Geisel’s estate controls the copyrights to his published works. His last original work, “Oh, the Places You'll Go!” was published about a year before his death and targeted at adults. And now it’s being debated in a very adult forum: the federal court system.

The basis for copyright law is in the Constitution’s Article I as one of the enumerated powers held by Congress, which gives lawmakers the ability “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” But sometimes copyrights conflict with the First Amendment and its guarantee that Congress can pass no law “abridging the freedom of speech.”

The current lawsuit involving “Oh, the Places You'll Go!” is focused on a takeoff that substitutes Star Trek characters for Dr. Seuss characters in a format that closely follows the Seuss book.

Last month, a judge in the United States District Court of the Southern District Of California said the authors of “Oh, The Places You’ll Boldly Go” couldn’t prove that the concept of “fair use” protected them from a lawsuit from the Seuss estate seeking damages.

Judge Janis Sammartino said she couldn’t reach a conclusion in Dr. Seuss Enterprises v. Comicmix about copyright protection in the case, and that the Trekkies couldn’t prove they were immune to trademark and unfair competition claims, so the Seuss lawsuit could proceed.

Comicmix claimed in a Kickstarter fundraising campaign the book was clearly a parody and the book had a similar statement. Proving the mashup of Seuss-like characters and Star Trek characters was critical to establishing a First Amendment claim under a fair use standard established by the Supreme Court.

In 1994, Justice David Souter set the current Fair Use test in a decidedly adult case, Campbell v. Acuff-Rose Music. The rap group 2 Live Crew produced a work called “Pretty Woman” that sampled parts of the Roy Orbison hit from the 1960s. Initially, 2 Live Crew asked the music publisher for permission to sample the Orbison song, which was denied. The group proceed to publish their song, which substituted 2 Live Crew’s lyrics for the originals. The group later claimed in court that as artists, the song was a parody that “quickly degenerates into a play on words, substituting predictable lyrics with shocking ones” to show “how bland and banal the Orbison song” was, in their opinion.

Under the 1976 Copyright Law, a parody is protected by a fair use claim, and a satire that seeks to primarily profit from a copyright-protected work isn’t. A federal appeals court agreed with Acuff-Rose, finding that the song’s “blatantly commercial purpose ... prevents this parody from being a fair use” because 2 Live Crew used too many elements from Orbison’s original song. The Supreme Court overturned that ruling.

Souter said that the Supreme Court had never before considered the issue of a parody being protected by a fair-use claim, but it agreed with that legal concept. “Like less ostensibly humorous forms of criticism, it can provide social benefit, by shedding light on an earlier work, and, in the process, creating a new one. We thus line up with the courts that have held that parody, like other comment or criticism, may claim fair use,” Souter concluded.

Justice Anthony Kennedy concurred, adding that a parody needed to have more than satirical humor. “It is not enough that the parody use the original in a humorous fashion, however creative that humor may be. The parody must target the original, and not just its general style, the genre of art to which it belongs, or society as a whole.”

In Dr. Seuss Enterprises v. Comicmix, Judge Sammartino concluded that the extensive use of Seuss characteristics, including the iconic Seuss typeface, overrode any parody considerations in the Star Trek mashup. In fact, the parody factor played little part in the decision; instead it was other tests from the Campbell decision and the 1976 law that swayed the judge. “Defendants not only use the words ‘Oh! The Places You’ll Go!’ in the title of Boldly, but also use the exact font used by Plaintiff. The look of the lettering is unquestionably identical on both books, down to the shape of the exclamation point.” 

But in a recent second Seuss case, the parody factor helped an off-Broadway play wins its argument against the Seuss estate in September 2017. The play, “Who’s Holiday!” featured an adult version of Cindy Lou Who from “How the Grinch Stole Christmas!” who had spent time in prison and dealt with substance-abuse issues after her failed relationship with the Grinch.

In Lombardo et al v Dr. Seuss Enterprises, a judge said playwright Matthew Lombardo met the four-part test from the 2 Live Crew decision. U.S. District Judge Alvin Hellerstein said the play had transformed the Seuss character so much that it had value as social commentary.

“The Play recontextualizes Grinch’s easily-recognizable plot and rhyming style by placing Cindy Lou Who - a symbol of childhood innocence and naivete - in outlandish, profanity-laden, adult-themed scenarios involving topics such as poverty, teenage pregnancy, drug and alcohol abuse, prison culture, and murder,” Hellerstein said. “The play’s coarseness and vulgarity lampoons ‘Grinch’ by highlighting the ridiculousness of the utopian society depicted in the original work: society is not good and sweet, but coarse, vulgar and disappointing.”

Because the play “subverts the expectations of the Seussian genre,” Hellerstein concluded the work was transformative under Souter’s ruling back in 1994, and that factor outweighed other considerations in the case, including the use of Seuss-style hand lettering and an image of the original Cindy Lou Who.

Scott Bomboy is the editor in chief of the National Constitution Center.


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