Oh, the Cases You’ll See! An Analysis of the Fair Use Doctrine in Dr. Seuss Enterprises v. ComicMix LLC
Posted on Jan 15, 2021 in Articles
One of the big recent copyright fair use cases involves a work titled Oh, the Places You’ll Boldly Go!: a Dr. Seuss and Star Trek mashup. The comic book contains various elements from Dr. Seuss’s famous book entitled Oh, the Places You’ll Go!, which have been mashed-up with several characters, imagery, and elements from the Star Trek science fiction franchise. The resulting book mirrors the illustration style famously attributed to Dr. Seuss, with near-exact duplicates of certain illustrations. It also borrows heavily from other Dr. Seuss stories.
Dr. Seuss Enterprises L.P., the assignee and owner of various intellectual property in the works of Theodor S. Geisel, famously known as Dr. Seuss, brought suit against ComicMix LLC claiming that the book constitutes unauthorized infringement of the late author’s work.
In 2019, the United States Southern District Court for the Southern District of California held that the comic book was clearly fair use of Dr. Seuss’s material, concluding that as a whole, the factors tended to weigh in favor of Defendant ComicMix LLC.
The Fair Use Doctrine is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances. Section 107 of the Copyright Act[1] provides the legal framework for determining whether a work is considered “fair use”, considering factors such as:
- The purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes.
- The nature of the copyrighted work.
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
- The effect of the use upon the potential market for or value of the copyrighted work.
In addition to the above, other factors may also be considered by a court. The evaluation of a fair use claim is determined on a case-by-case basis.
In December of 2020, on appeal, the case was argued before the United States Court of Appeals for the Ninth Circuit[2]. The panel held that defendants’ use of Dr. Seuss’s body of copyrighted work was not fair use. The panel concluded that all four of the above factors weighed against fair use.
Specifically, the court ruled that the purpose and character of the work was not fair use. This was because the defendants’ use was commercial and was not a parody or otherwise transformative. Thus, the court concluded, the first factor weighs against fair use. The creative nature of the copyrighted work Oh, the Places You’ll Go! weighs the second factor, typically not very significant in determining the overall balance, against fair use. The court further found that both the quantitative and qualitative amounts taken by the work in question weigh the third factor against fair use as well, as the overall visual composition and storyline were copied almost exactly from several Dr. Seuss’s books. Regarding the fourth factor, the Court found that the work would curtail Oh, the Places You’ll Go!’s potential market, as ComicMix hoped to market the book to one of the potential markets for Seuss’s works.
The ruling has afforded a new scope of protection for copyright owners against unauthorized use of copyrighted material in “mashups” and other similar concepts. ComicMix, attempting to break precedent, brought forth the argument that fair use is not an affirmative defense, but the injured party should bear the burden of demonstrating potential market harm. However, the court swiftly struck down this argument, emphasizing that fair use is unequivocally an affirmative defense, and the burden rests firmly on the defendant.
So beware, potential mash-up-ers: Dr. Seuss Enterprises v. ComicMix LLC sets a firm standard against such a work; and further, the author of the mash-up will have to prove why it does not infringe on the original work.
[1] https://www.copyright.gov/title17/92chap1.html#107
[2] https://cdn.ca9.uscourts.gov/datastore/opinions/2020/12/18/19-55348.pdf
by Saval Desai
