In Brief: A mash up of Dr. Seuss and Star Trek is not fair use.
For almost four years, comics’ legend, Ty Templeton, and Star Trek’s “Trouble with Tribbles Episode” writer, David Gerrold and their company, ComicMix, have been in litigation with the Dr. Seuss Estate. ComicMix is trying to publish a graphic comic called “Oh, The Places You'll Boldly Go.” The comic mashed Dr. Seuss’ “Oh The Places You’ll Go” with Star Trek characters. ComicMix said it was fair use. The Dr. Seuss Estate said no.
The procedural history is basically sometimes the courts said it was fair use and sometimes they said it wasn’t. The Ninth Circuit Court of Appeals may have ended ComicMix’s foray into the final frontier.
The Ninth Circuit reversed summary judgment in favor of ComicMix and remanded the case back to the District Court. The Ninth Circuit held that all four factors of fair use weigh in favor of Dr. Seuss. The first factor (purpose and character of the use) weighed in favor of Dr. Seuss because Boldly wasn’t a parody of the original; it just evoked the original. The second factor (nature of the copyrighted work) weighed in favor of Dr. Seuss because the original was a creative fictional work. The third factor (amount and substantiality of the use) weighed in favor of Dr. Seuss because there was an extensive copying of the original work. The fourth factor (effect on potential market) weighed in favor of Dr. Seuss because it was able to show that Dr. Seuss makes money by authorizing collaborations.
The case is now going back to the trial court where it will be very hard for ComicMix to continue asserting fair use.
WHY YOU SHOULD KNOW THIS. Even the courts don’t see eye to eye when it comes to fair use. In this case, the courts at different levels volleyed back and forth with whether Boldly was fair use. Critics of the decision have some valid tribbles, I mean, quibbles. The analysis of the first factor seems to use a narrow definition of parody. The foundation of parody has to call back to the original so the reader or viewer can connect the two. And the definition of parody can be fluid. The analysis of the final factor could have been viewed another way. Simply ask the question: Would I buy Boldly instead of the original? If the answer is “no”, then this factor should weigh in favor of fair use.