Last year, Mike wrote about an interesting case between a small group of enterprising comic artists and Dr. Seuss Enterprises. Comicmix artists had created a parody mashup of Dr. Suess' Oh The Places You'll Go and the Star Trek universe to create Oh The Places You'll Boldly Go, a rather sweet take on both franchises. The creators of this new work setup a crowdfunding campaign, which the Dr. Seuss estate halted with takedown notices. The case ended up in court, with the Seuss estate claiming that the new work infringed both its copyright and trademark rights. The creators, along with Ken "Popehat" White, claimed all of this was well within the boundaries of Fair Use.
Well, the judge for the case has now ruled on the trademark matter, and it's a big win for Comicmix. Additionally, while the copyright claim survives for now, the judge makes it clear that things aren't looking great for that claim either.
Now, the United States District Court for the Southern District of California court has ruled on the trademark question and found that there is no valid trademark claim thanks to "nominative fair use," and also indicated that it would be favorably disposed to fair use defenses on the copyright question.
The estate has two weeks to prove copyright damages and to amend its trademark claims.
It's difficult to see how the Seuss Estate is possibly going to go about demonstrating copyright damages. Given the judge's review of the material and her analysis thus far on the copyright question, the copyright claim has a hell of a hill to climb. The Seuss estate argued that adjudicating the matter of Fair Use on the copyright claim at the motion to dismiss stage was inappropriate because of all the facts required to make that assessment. The judge didn't buy that, largely because the singular claim of harm made by the estate was the claim that it lost out on the opportunity to license the work at all.
As a threshold matter, Plaintiff argues that “while possible in rare instances to decide fair use at the pleading stage, it is inappropriate here, where significant material facts are necessary to make a determination of fair use.” (Opp’n 9.) However, the only genuine fact Plaintiff points to is that “the issue of whether the Defendants’ use . . . will appreciably harm the value of [Plaintiff’s] Works or . . . market simply cannot be made without discovery and further development of the record on this issue.” (Id. at 15–16.) And Defendants point out that Plaintiff’s sole allegation of market harm is that Defendants “usurped DSE’s licensing opportunities.” (Reply 4 (citing Compl. ¶ 32).) Thus, as long as the Court takes Plaintiff’s allegation of market harm as true, Defendants are otherwise correct that “[t]he complaint, and documents sufficiently referenced therein or otherwise subject to judicial notice, are sufficient to enable the Court to evaluate the issue of fair use.” (MTD 6.) In particular, the Complaint itself raises the issue of fair use, (Compl. ¶ 35), and the contents of the two primary books and other relevant works are before the Court and not in reasonable dispute, (RJN Exs. 5, 6).1 Accordingly, the Court concludes that fair use analysis is appropriate on this Motion to Dismiss and addresses each factor in turn.
As a bonus, the judge also acknowledges that mashup art is an emerging medium and states that bending to the claim by the Seuss estate would effectively kill off an entire form of art.
This case presents an important question regarding the emerging “mash-up” culture where artists combine two independent works in a new and unique way. See, e.g., Art Term, Postmodernism, Tate, http://www.tate.org.uk/art/art-terms/p/postmodernism (last visited Apr. 28, 2017) (“Often mixing different artistic and popular styles and media, postmodernist art can also consciously and self-consciously borrow from or ironically comment on a range of styles from the past.”). Applying the fair use factors in the manner Plaintiff outlines would almost always preclude a finding of fair use under these circumstances. However, if fair use was not viable in a case such as this, an entire body of highly creative work would be effectively foreclosed.
In other words, shuttering an entire art form is not the purpose of copyright law at all, hence this sort of Fair Use defense. It's as eloquent a nod to why creativity ought not be stifled in favor of protectionism as I've seen in a court document and should be required reading for any judge ruling on matters of Fair Use.
And so we wait for two weeks to see what, if any, documented claim of harm the Seuss Estate can work up for its copyright claim. I expect we will all be underwhelmed.