Dr. Seuss and the Right to “Unpublish”

Stephen Carlisle March 18, 2021

The decision of Dr. Seuss Enterprises to no longer publish six books of the renowned children’s author created quite the controversy. ¹ But more bizarrely, this event caused the anti-copyright crowd to leap into action. Repeating the same old complaints about copyright duration, with the obligatory swipes at Mickey Mouse and the Walt Disney Company (complaints which I long ago explained were unfounded ²), the anti-copyright crowd again suggested that DSE should not be allowed to “unpublish” the works, again pushing for the proposition that such a withdrawal should cause the instant creation of some “super fair use” right to publish the works without the consent of the copyright owner. ³

I previously wrote about why this proposal is a legal a non-starter. ⁴ Copyright is not, nor has it ever been, a “use it or lose it” right. Plus, since exclusive right of publication belongs to the copyright owner, ⁵ it follows that the absence of such publication does not suddenly convey that right on someone else.

The most common reason that books go out of print is for lack of sales. Indeed, as we shall see, had the six books in question been written by someone other than Dr. Seuss, they probably would have gone out of print. I suspect that the reason DSE took this action was not due to “cancel culture,” but was made purely for business reasons.

For this we need to rewind a few years.

The National Education Association used to sponsor an event as a part of their “Read Across America” program. The event was called “Seuss-Fest,” and was timed to coincide with Dr. Seuss’ birthday. The “Cat in The Hat” was a part of the RAA logo. ⁶

My university used to participate in this event. Charitable contributions gave NSU the money so that Dr. Seuss books could be purchased, which were given away for free to the children that attended. The event attracted massive turnouts, around 5,000 people.

Yet, starting around 2017, the tone around the event started to change. Dr. Seuss had drawn some extremely racist cartoons in the 1930’s. They had been largely forgotten. But researchers started to uncover them. To call these drawings “racist” is almost soft-peddling the content. These cartoons are so offensive that the editors of the blog decided against including them in this blog post.

One depicts a well-to-do white man examining a group of black men. The black men are crudely caricatured to resemble monkeys. The sign behind what is presumably a salesman reads:

“Take home a high-grade N-gg-r for your Woodpile!-Satisfaction Guaranteed!”

If you are interested, you can see the cartoon here. ⁷

Also forgotten history, but now being remembered, is Seuss’ strong support for the internment of Japanese Americans during World War II. One cartoon depicts a parade of Japanese men in a line stretching from California to Washington State. The men are depicted uniformly, all with buck teeth and slanty eyes. They are waiting in line to receive a brick of high explosives-TNT to be precise- while another slanty-eyed, buck toothed man sits on the roof of the store room with a telescope, who is according to the cartoon caption “Waiting for the signal from home.”

If you are interested, you can see the cartoon here. ⁸

In 1976, Seuss offered this “sort of” apology:

“When I look at them now, they’re hurriedly and embarrassing badly drawn (sic). And they’re full of snap judgements that every political cartoonist has to make between the time he hears the news at 9am and sends his drawing to press at 5pm. The thing I do like about them is their honesty and frantic fervor.” ⁹ (emphasis original)

So forgotten were the cartoons that the NEA entered into a 20 year contract with DSE to use Seuss books and illustrations in the “Read Across America” program in the late 1990’s.

Around 2015-2016, the 1930’s cartoons started to get “rediscovered.” Two researchers in UC San Diego (a PhD candidate, and another researcher—whose Japanese grandparents were arrested in California and imprisoned during WW2 in internment camps) were working on a Seuss paper. They identified 45 specific illustrations in Dr. Seuss Books (43 “East Asian” and 2 “African”) all male, subservient roles, all drawn in offensive stereotypical cartoon style. They sent their findings to NEA in 2017. ¹⁰

Depending upon whom you read, the NEA either terminated their licensing agreement with DSE, or simply let it expire. The NEA tersely said:

“Effective August 31, 2019, NEA will no longer have a licensing agreement with Dr. Seuss Enterprises. After August 31, NEA Affiliates and Members may no longer use the old Read Across America logo with the Cat in the Hat leaning over a U.S. map. A new Read Across America logo has been developed and is now available to NEA members and Association Staff.” ¹¹

For our part, NSU rebranded the spring book event as “Story-Fest” and focused on other children’s books, such as “Pete The Cat.”

Needless to say, as with all things internet, the story gained traction, leading to the announcement by DSE on March 2, 2021 that it would be withdrawing six titles from further publication. They are: ¹²

• And to Think That I Saw It on Mulberry Street (1937)
• McElligot’s Pool (1947)
• If I Ran the Zoo (1950)
• Scrambled Eggs Super! (1953)
• On Beyond Zebra! (1955)
• The Cat’s Quizzer (1976)

I read a lot of Dr. Seuss to my kids when they were little. I have never read any of those books. Some titles I had never heard of until the current debate. Which brings me to this point:

In the present controversy, DSE has decided to stop publication of six books. What gets lost in the noisy debate is that these books are not popular and do not sell. For example, To Think I Saw It on Mulberry Street sells about 5,000 copies a year according to the New York Times. By contrast, Green Egg and Ham sells over 300,000 and Oh, The Places You’ll Go sells over 500,000. ¹³ One would have to ask, if the author of these six books was anyone other than Dr. Seuss, would they still be in publication at all?

The end result of the non-publication decision is that DSE gets to play the part of “victim” or “hero” depending upon your political persuasion, while the decision itself seems solely business driven.

But, regardless of the reason, the decision to withdraw these books from publication belongs to DSE alone, a decision that no one has the right to “undo.”