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Fair Use Boldly Goes Where No Fair Use Has Gone Before

On November 10, 2016, Dr. Seuss Enterprise (“Seuss” or the “Plaintiff”) filed a complaint against ComicMix LLC (“ComicMix”), David Jerrold Friedman a/k/a David Gerrold (“Gerrold”), Ty Templeton (“Templeton”), and Glenn Hauman (“Hauman”) (collectively, the “Defendants”) for copyright infringement, trademark infringement, and unfair competition.

As to the copyright infringement claim, the Plaintiff asserts the Defendants infringed its popular book, Oh, the Places You’ll Go! (“ Go!”). According to the complaint, Defendants had a Kickstarter campaign to fund the distribution and printing of Oh, the Places You’ll Boldly Go! (“ Boldly”), which combines elements of Go! and various Dr. Seuss works with “certain characters, imagery, and other elements” from the “Star Trek” science fiction franchise. The Plaintiff claims that Boldly “unabashedly misappropriates [Seuss’s] intellectual property to create the ‘look and feel’ of an authorized Dr. Seuss work.”

On December 19, 2016, Defendants responded to Plaintiff’s complaint with a motion to dismiss claiming that Boldly, “constitutes fair use of any elements of Dr. Seuss books protected by copyright . . . law.” The Defendants further argued that many of the elements the Plaintiff claims were infringed are elements that are not subject to copyright protection, including the title, characters, and storyline. In addition, the Defendants claim Boldly is a parody of Go! and that “any material taken from or based on Dr. Seuss works is fundamentally, rigorously transformed.” The Defendants concluded that a fair use “analysis confirms that Boldly is a hallmark case of fair use. Fair use is not an infringement, so [Plaintiff] fails to state a copyright claim.”

On June 6, 2017, the district court denied in part the Defendant’s motion, finding that there was a “near-perfect balancing” of the fair use factors, such that the court could not find fair use as a matter of law. In reaching that conclusion, the court disagreed with the Defendants’ characterization of Boldly as a parody, and instead found it to be “a literary and pictorial ‘mash-up.’” However, the court continued that “although Boldly fails to qualify as a parody it is no doubt transformative.”However, "given the procedural posture of [the] motion and near-perfect balancing" of the fair use factors, the court denied the Defendants' motion to dismiss.

The Plaintiff filed an amended complaint on June 22, 2017, and the Defendants again moved to dismiss the complaint for failure to state a claim. The district court again denied the motion as to the copyright claim.

In December of 2018, both parties filed motions for summary judgement. On March 12, 2019, U.S. District Court Judge Janis Sammartino, concluded that Boldly made fair use of Go!, and did not infringe the copyrights of Dr. Seuss Enterprises. Judge Sammartino said that while Boldly borrowed heavily from Seuss’s works, Boldly was a “highly transformative” work, and any harm to the market for Seuss’ works was speculative.

Plaintiff filed its Opening Brief in an appeal to the 9th Circuit on August 5, 2019. Plaintiff requested the 9th Circuit determine whether the district court erred in finding Boldly to be a fair use of Plaintiff's works, including Go! Defendants filed an Answering Brief on October 5, 2019.

Seuss’ reply brief is due today, November 25 , 2019. We will continue to provide updates as they become available.