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Wednesday, March 13, 2019

Maybe Now We Can Finally Read This Star Trek/Dr. Seuss Mash-Up

By Joe Setyon - March 13, 2019 at 01:45PM

What do you find at the intersection between the quadrants of Star Trek and Dr. Seuss? Why, a fair-use lawsuit, of course! But thanks to a federal judge's ruling on Tuesday, that suit's supply of dilithium crystals might be running dangerously low.

Confused? Let's break it down. We've all heard of the 1990 Dr. Seuss (real name Theodor Geisel) book Oh, the Places You'll Go! It's an inspiring children's story often given as a gift to students graduating from high school or college.

But you might not have heard of Oh, the Places You'll Boldly Go!, a 2016 "mash-up" of Star Trek and Dr. Seuss. The book is the crowdfunded brainchild of ComicMix, a company that creates (as the name suggests) content related to comics and other works of fiction. In 2016, ComicMix's Glenn Hauman teamed up with longtime comics artist Ty Templeton and writer David Gerrold (real name David Jerrold Friedman), who wrote the renowned episode The Trouble with Tribbles for the original Star Trek series. They started a Kickstarter campaign to fund the project, eventually raising nearly $30,000, and considered Boldly to be "a parody, a mash-up, and a transformative work," according to an order issued Tuesday from Judge Janis Sammartino of the U.S. District Court for the Southern District of California.

But Dr. Seuss Enterprises, which controls the copyrights for the late author's works, wasn't having it. Beginning in September 2016, the company sent a series of cease-and-desist letters regarding the unpublished Boldly. In November of that year, Dr. Seuss Enterprises filed suit, claiming copyright violations. The book became trapped in a pocket of null space.

A long and complicated legal battle over fair use ensued, culminating in Sammartino's summary judgement in favor of the Boldly creators.

What exactly is fair use? Under Section 107 of the Copyright Act of 1976, there are several factors that must be taken into account when considering whether one work violates the copyright protections of another work. Those factors are "the purpose and character of the use," "the nature of the copyrighted work," "the amount and substantiality of the portion used in relation to the copyrighted work as a whole," and "the effect of the use upon the potential market for or value of the copyrighted work."

Fair-use lawsuits can be tricky. As Sammartino notes in her ruling, there's no one standard that can be applied in these sorts of cases. Courts must take into account the factors described above, but there's no rule that says if certain facts are met, then the court must rule in one particular way. As Reason contributor Ken White (of Popehat Twitter fame) explained on his blog in October 2016, the fair use doctrine's "key elements are subjective and lack bright lines. That means it is rarely possible to use the Fair Use defense to get out of litigation early; usually you've got to litigate all the way to summary judgment or even trial."

In June 2017, the district court ruled that while Boldly was not technically a parody, it was still a "highly transformative work that takes no more than necessary to accomplish its transformative purpose and will not impinge on the original market for Plaintiff underlying work." In response to that ruling, Dr. Seuss Enterprises filed an amended complaint, and the ComicMix crew asked for the lawsuit to be dismissed.

This week, Sammartino issued a summary judgement ruling that applied each of the fair-use doctrine factors. First, regarding the "purpose and character of the use," the court upheld its prior determination that Boldly is a "highly transformative work."

"Defendants did not copy verbatim text from Go! in writing Boldly, nor did they replicate entire illustrations from Go!," the ruling reads. "Although Defendants certainly borrowed from Go!—at times liberally—the elements borrowed were always adapted or transformed."

Also, Sammartino said that while both books are illustrated works with "uplifting" messages, they don't necessarily have the same purpose, as Boldly is largely "tailored" to Star Trek fans. The second factor, regarding "the nature of the copyrighted use," actually favors Dr. Seuss Enterprises, Sammartino wrote, "because there is no dispute that the Copyrighted Works are highly creative but have also been long and widely published."

On the issue of "substantiality," Sammartino drew parallels to a fair-use case from the 1990s, Leibovitz vs. Paramount Pictures. In an effort to market for the 1994 release of the Naked Gun franchise's final film, Paramount released posters of a pregnant, naked model with the head of actor Leslie Nielsen. Photographer Annie Leibovitz saw this as a copyright infringement on a nude, pregnant photo of actress Demi Moore that she had taken for a famous 1991 Vanity Fair cover. The movie poster was clearly supposed to be a reference to the Moore photo, "from the model's posture to her hand placement to the use of a large ring on the same finger," Sammartino recalled. "The defendant's photograph was then digitally enhanced using a computer to make the skin tone and body shape more closely resemble that of Ms. Moore in the plaintiff's original photo."

In that case, an appeals court ruled in Paramount's favor on the basis that the photo was a parody. However, the circuit court made sure to differentiate between what is protected under copyright law (unique camera angles, lighting, etc.) and what is not (using an image of a naked, pregnant woman in a given pose).

In the Dr. Seuss case, Sammartino explained that while "plaintiff may claim copyright protection in the unique, rainbow-colored rings and tower on the cover of Go!" it "cannot claim copyright over any disc-shaped item tilted at a particular angle," as doing so "would foreclose a photographer from taking a photo of the Space Needle."

Finally, the court said the "market" factor was "neutral." For one thing, Sammartino explained that Star Trek is an adult show with adult themes, and therefore so is Go! "Despite its admittedly Seussian appearance, Boldly is clearly not a children's book and there is a minimal risk that Boldly will usurp Go!'s market to the extent it is targeted to children," she writes.

While both books are also meant for graduating students, the court said the plaintiff didn't introduce enough evidence that Boldly sales will harm Go! sales. "Although it is certainly conceivable that some would-be purchasers of Go! would instead purchase Boldly for a Trekkie graduate, there is a dearth of evidence or expert testimony permitting the Court to extrapolate the likely effect—if any—that Boldly may have on Plaintiff's sales of Go!" Sammartino said.

"On balance, therefore, the fair use factors favor Defendants," she ruled. "Accordingly, the Court GRANTS Defendants' Motion for Summary Judgment as to fair use."

The ruling "is a big win for the First Amendment," Michael Licari, a lawyer for ComicMix, told Reuters. Dr. Seuss Enterprises has said it may appeal, though at least for now, ComicMix is in the clear.

This case is in some ways similar to another fair-use lawsuit, this one stemming from a 2008 episode of the irreverent Comedy Central animated series South Park. The show had parodied a viral video, prompting Brownback Films to sue Viacom, which owns Comedy Central. The U.S. Court of Appeals for the 7th Circuit eventually ruled in Viacom's favor.

These sorts of rulings are important because they affirm the right to transform or parody existing content to create something unique. As free speech lawyer Marc Randazza told Reason TV in 2017: ""Copyright is not just there to incentivize you to create. It's also there to create a larger marketplace of ideas."


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