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Oh the Places Fair Use Can Boldly Go

Parties presented oral arguments regarding the fair use dispute before the Ninth Circuit.

On April 27, 2020, Dr. Seuss Enterprises ("Seuss") and ComicMix, LLC and associated parties ("ComicMix") gave oral arguments concerning the fair use dispute before the United States Court of Appeals for the Ninth Circuit. The attorneys' arguments and the judges' questions were presented remotely through video conferencing. We reported on earlier developments of this case in November.

In its argument, Seuss contended that ComicMix's book " Oh, the Places You'll Boldly Go!" (" Boldly") does not make fair use of Seuss's book " Oh, the Places You'll Go!" (" Go") because Boldly's main purpose and effect is to serve as a replacement for Go in the graduation gift market. Seuss characterized Boldly as a "'Star Trek'–flavored clone" of Go that exploits the popularity of the original instead of a transformative work. Seuss also argued that the ability to create licensed derivatives of a work is a crucial incentive for the creation of original works (in accordance with the purposes of copyright law) and that allowing unlicensed derivatives like Boldly to proliferate in the market would undermine this incentive.

ComicMix, on the other hand, reemphasized its belief in the parodic nature of Boldly, asserting that its mashup format contrasts the individualistic and somewhat self-centered themes of Go with the team-effort mentality of "Star Trek." The mashup and implicit parody of Boldly, ComicMix argued, should serve to qualify the work as protected by fair use.

ComicMix also raised a novel contention, opposed by the arguments of Seuss and by much existing case law, that fair use should not be categorized as an affirmative defense. ComicMix contended that this categorization puts the burden of proving market-based harm on the defendant while it should fall on the plaintiff. ComicMix claims that Seuss has provided little concrete evidence of harm it alleges to have suffered in the marketplace because of Boldly, turning instead to speculative evidence. ComicMix believes that this lack of evidence should weigh more strongly in its favor and that this result would be achieved by shifting its burden through the re-categorization of fair use.

Whether this line of argument and the other points raised were found persuasive by the Court remains to be seen. We will provide further updates on this case as they become available.