Dear Doc (hope you’re well and alive):
I heard of a case that’s just jive.
You can go, but not boldly
Said the judge, rather coldly
Far too Seuss, your project, contrived.
Signed,
ComicMix
Dear CM:
I suppose that you are asking about a recent court decision in a dispute about the book “Oh, the Places You’ll Boldly Go!”, a mashup of the last book written by the late Theodore Geisel, who died in 1991, and “Star Trek”. The
new book was created by David Gerrold, who wrote for the original Star Trek television program. It was illustrated by Ty Templeton, and edited by Glenn Hauman. These three launched a crowdfunding program to raise money to publish their book, but almost immediately ran into a lawyer-letter from Dr. Seuss Enterprises, which runs the author’s estate.
The claim in court was that Boldly Go infringed the copyright on the original work. Not so fast, claimed the three creators – this is a fair use because it is a parody of the original, and besides, it is transformative to use the Seussian style in space, with familiar characters like Captain Kirk and Mr. Spock. A trial court judge agreed, and gave Boldly a pass. Not so fast, claimed the Seuss people, who appealed to a three-judge panel of the Ninth Circuit.
In December, the judges ruled that Boldly Go is not protected from a copyright infringement claim. The judges said that Boldly Go copied broad parts of the Seuss original, including details of many of the illustrations.
“The creators thought their ‘Star Trek’ primer would be ‘pretty well protected by parody,’ but acknowledged that ‘people in black robes’ may disagree,” Judge M. Margaret McKeown wrote in the opinion. “Indeed, we do.”
The Boldly Go creators could not argue that their book was a parody, because it wasn’t critiquing the original book, the judge said. Although they argued that the book should be considered transformative since it contained “extensive new content,” the judge disagreed.
Although ComicMix’s work need not boldly go where no one has gone before, its repackaging, copying, and lack of critique of Seuss, coupled with its commercial use of Go!, do not result in a transformative use
On a crowdfunding page to help with legal fees, Mr. Hauman described the thinking behind the book and the lawsuit, writing in Seussian rhyming verse.
If you care about mashups and value free speech,
If you think free expression’s a value to preach
Then reach in your wallets and give what you will
And help us pay for a quite large legal bill.”
The judges’ ruling now allows the lawsuit to proceed on the fair use claim back in the trial court. The Doc will keep an eye on Things (both 1 and 2).
Have a question on use that is fair? Need opinions given with care? Then ask right away, before you must pay, since damages may be a bear.
Until next month,
The “Doc”
— Lawrence A. Husick, Esq.