Court of Appeals Says “No Seuss For You!”

Stephen Carlisle January 6, 2021

On December 19, 2020, the 9^th Circuit Court of Appeals definitively ruled that the Dr. Seuss-Star Trek “mash-up” titled Oh, The Places You’ll Boldly Go was not fair use. Specifically, Boldly

• Was not a “parody” of multiple works of Dr. Seuss
• Was not a “transformative” use
• Took a “substantial amount” and the “heart” of material authored by Dr. Seuss
• Had failed to carry the burden of proof as to the claim of fair use
• Was a commercial substitute for various derivative works licensed by Dr. Seuss Enterprises ¹

This is a case that has been in the Court system for over three years. I have written about the case twice previously. ² There have now been three written decisions of the Federal Courts. That’s an awful lot of ink to spill, and a lot of attorney’s fees expended, over a work which has yet to be published. ³

Yet, the case has attracted enormous attention. Indeed, the appeal attracted seven separate amicus curiae filings. ⁴ The main focus seemed to fall on two points: the ever thorny and malleable problem of whether a work claiming fair use was “transformative,” and if fair use is an affirmative defense which requires the Defendant asserting it to be responsible for proving the factual support.

As the 9^th Circuit recites:

“Oh, the Places You’ll Boldly Go! (Boldly). Authored by Star Trek episodes author David Gerrold, illustrated by Ty Templeton, and edited by fellow Trekkie Glenn Hauman (collectively, ComicMix), Boldly is a mash-up that borrows liberally—graphically and otherwise—from Go! and other works by Dr. Seuss, and that uses Captain Kirk and his spaceship Enterprise to tell readers that ‘life is an adventure but it will be tough.’ The creators thought their Star Trek primer would be ‘pretty well protected by parody,’ but acknowledged that ‘people in black robes’ may disagree. Indeed, we do.” ⁵

When the District Court issued its opinion granting summary judgement to Defendant ComicMix, I wrote a lengthy post criticizing the decision, primarily on the grounds that the District Court had blatantly ignored binding precedent, tellingly involving the very same Plaintiff: Dr. Seuss Enterprises. ⁶ While I’m not ready to take my seat on the 9^th Circuit Court of Appeals, it seems that they agree with my post.

“Boldly is not a parody. ComicMix does not seriously contend that Boldly critiques or comments on Go!. Rather, it claims Boldly is a parody because it situated the ‘violent, sexual, sophisticated adult entertainment’ of Star Trek ‘in the context of [Dr. Seuss]’ to create a ‘funny’ book. We considered and rejected this very claim in an appeal involving another well-known book by Dr. Seuss—The Cat in the Hat (Cat). The retelling of the O.J. Simpson double murder trial in the world of Cat—in a book titled The Cat NOT in the Hat! A Parody by Dr. Juice (Not)—was not a parody of Cat.” ⁷

So, the first point is that merely calling something a “parody” of another work does not magically make it so, as I also pointed out in another post about “porn parodies.” ⁸ In order to be a parody, the new work must comment in some fashion on the work being borrowed from. In the ruling on The Cat NOT in the Hat, the 9^th Circuit held that

“These stanzas and the illustrations simply retell the Simpson tale. Although The Cat NOT in the Hat! does broadly mimic Dr. Seuss’ characteristic style, it does not hold his style up to ridicule. The stanzas have ‘no critical bearing on the substance or style of ‘The Cat in the Hat.’” ⁹

So it goes with Boldly:

“Although elements of Go! are featured prominently in Boldly, the juxtapositions of Go! and Star Trek elements do not ‘hold [Seussian] style’ up to ridicule. (citation omitted).From the project’s inception, ComicMix wanted Boldly to be a Star Trek primer that ‘evoke[s]’ rather than ‘ridicule[s]’ Go!. Similarly, Boldly’s use of the other Seuss works does not conjure up a critique of Go!. Boldly’s replacement of Grinch’s ‘Whos from Who-ville’ with the diverse crew and Kirk’s ‘lovers of every hue,’ the redrawing of ‘a Sneetches machine to signify the Enterprise transporter,’ and the rendering of ‘the ‘lonely games’ played in Go!’ as a ‘contemplative chess match between two Spocks’ were all used to tell the story of the Enterprise crew’s adventures, not to make a point about Go!. Lacking ‘critical bearing on the substance or style of’ Go!, Boldly cannot be characterized as a parody.” ¹⁰

The claim to a “transformative” use falls for the same reason:

“Notably, Boldly lacks the benchmarks of transformative use. These telltale signs of transformative use are derived from the considerations laid out in Campbell, our north star, and Seltzer v. Green Day, Inc. from our circuit: (1) ‘further purpose or different character’ in the defendant’s work, i.e., ‘the creation of new information, new aesthetic, new insights and understanding’; (2) ‘new expression, meaning, or message’ in the original work, i.e., the addition of ‘value to the original’; and (3) the use of quoted matter as ‘raw material,’ instead of repackaging it and ‘merely supersed[ing] the objects of the original creation’… While Boldly may have altered Star Trek by sending Captain Kirk and his crew to a strange new world, that world, the world of Go!, remains intact. Go! was merely repackaged into a new format, carrying the story of the Enterprise crew’s journey through a strange star in a story shell already intricately illustrated by Dr. Seuss. Unsurprisingly, Boldly does not change Go!; as ComicMix readily admits, it could have used another primer, or even created an entirely original work. Go! was selected ‘to get attention or to avoid the drudgery in working up something fresh,’ and not for a transformative purpose.” ¹¹

Ouch.

This is where a picture, or a few pictures, are worth a thousand words. Here are side by side comparisons of Boldly and the Seuss works they are borrowed from. Seuss is on the left. Boldly is on the right.

At this point, it is quite clear that Boldly is a slavish copy of Oh, the Places You’ll Go! and other Seuss works, with elements from Star Trek sprinkled in as the “special sauce.” So, as to the third element of fair use, “the amount and substantiality of the portion used” is indeed quite enormous.

As to the fourth factor, market harm, ComicMix suddenly takes the untenable position that fair use is not an affirmative defense, for which ComicMix would bear the burden of proof, but is up to Dr. Seuss to prove market harm. This positon fails as both a matter of law and of fact. The 9^th Circuit states:

“Not much about the fair use doctrine lends itself to absolute statements, but the Supreme Court and our circuit have unequivocally placed the burden of proof on the proponent of the affirmative defense of fair use. ComicMix tries to plow a new ground in contending that fair use is not an affirmative defense and that the burden shifts to Seuss to prove potential market harm. Campbell squarely forecloses this argument… Hence, ComicMix, as the proponent of the affirmative defense of fair use, ‘must bring forward favorable evidence about relevant markets.’ (citation omitted) Because ComicMix’s position is that it does not bear the burden of proof, it does not argue the adequacy of its scant evidence.” ¹²

But most importantly, and a point on which I have pounded the table for years, is that Boldly is clearly a derivative work, and one that negatively impact Seuss’ ability to market the same.

“Nor does ComicMix address a crucial right for a copyright holder—the derivative works market, an area in which Seuss engaged extensively for decades. See 17 U.S.C. § 106(2). A relevant derivative works market includes ‘those that creators of original works would in general develop or license others to develop.’ (citation omitted). Seuss has already vetted and authorized multiple derivatives of Go!, including the following books: Oh, The Things You Can Do That Are Good For You!; Oh, the Places I’ll Go! By ME, Myself; Oh, Baby, the Places You’ll Go!; and Oh, the Places I’ve Been! A Journal. Recently, Seuss announced that it has partnered with Warner Animation Group to adapt Go! into an animated motion picture, scheduled for theatrical release in 2027…Works like Boldly would curtail Go!’s potential market for derivative works. This is not a case where the copyist’s work fills a market that the copyright owner will likely avoid, as is true for ‘a lethal parody’ or ‘a scathing theater review.’ (citation omitted). In fact, ComicMix hoped to get to one of the potential markets for Seuss’s derivative works before Seuss, believing that Seuss would “want to publish it themselves and give [ComicMix] a nice payday.” ¹³

In sum, all of the factors of fair use work in favor of Seuss and against ComicMix. ¹⁴

So, in the (almost) words of a famous character from the TV show Seinfeld –

“No Seuss for you!”