Category: Lit/Pub

Seuss Nixes Six, Sowing So Many Cli©ks!

In late January, I published a post advocating that we go ahead and cancel some culture. That piece was addressing the subject of platform responsibility, asserting that Facebook et al should feel free to stop amplifying disinformation, hate-mongering, and (unfortunately) sedition and that it should do so without all the dithering about speech rights. There, I asserted that neither Facebook, nor anybody else, needs to apologize for “cancelling” fascism or, more broadly, any illiberal and violent agenda hellbent on ending democracy.

Still, I am loath to use the term “cancel culture” at all. Like other neologisms, it has been sapped of meaning by grumbling Trumpublicans, who make no distinction between, say, deplatforming a white supremacist and a decision in the creative world where authors and stewards of works amend how they express themselves because it may be offensive to the market.

Can the intent to avoid offense go too far? Yes, in my view, it can. I believe, for instance, that it is illiterate to demand only a sanitized version of Huckleberry Finn, or to apply certain sensitivities so aggressively as to mute authors from expressing honest observations about the human condition. (If a writer creates a misogynist character who never utters a sexist remark, the result would be ridiculous.) But such instincts are not the only path to illiteracy. It is also illiterate not to know that certain forms of expression have always been ignorant or hateful—the most obvious of these would be the anthology of Black caricatures in America—and acknowledging this truth in the present is not a “cancellation” of anything. In fact, it’s culturally additive, if you think about it.

Because while there may be pockets of society that would hyperextend the effort to avoid offending anyone (an impossibility), it does not appear that our cultural output comprises the kind of tedious homogeneity one would expect as a result. On the contrary, cultural works are more diverse and complex than ever; and perhaps it is this fact alone that certain “conservatives” find so offensive. If that’s the case, I would point to their tattered and neglected hymnals and suggest they sing a few verses of the Free Market Is Doing Its Job.

But why this sermon? Because the latest bit of news that has a certain brand of conservative frothing in the media was the announcement by Dr. Seuss Enterprises (DSE) that it will discontinue publication of six titles. These are And to Think That I Saw It on Mulberry Street, If I Ran the Zoo, McElligot’s Pool, On Beyond Zebra!, Scrambled Eggs Super!, and The Cat’s Quizzer. 

The brief statement by the company declares without equivocation, “These books portray people in ways that are hurtful and wrong.” And in response, various pundits lashed out, blaming “post-modernist, woke, liberals” for wanting to erase or scrub the life out of all past works. And as much as I am willing to roll a jaundiced eye at excessive wokeness, that is only a fragment of the scorn I feel for all the hyperventilating reactions to DSE’s decision—especially the copyright nonsense it set in motion.

Copyright law was dragged into the conversation because, of course, it is copyright that enables DSE to cease the production of new copies of these titles. To be clear, however, it is first and foremost the speech right that safeguards us against coerced speech. Any author/rightsholder may choose to stop making a work available because it has become anachronistic, offensive to the market, unprofitable, or simply because the author has changed his damn mind about what the work says. The right to stop speaking is inherent to the First Amendment, and with published works, that right is enforced through copyright law.

Consequently, in response to DSE’s choice to discontinue these titles, some critics on both the left and right began noising that copyright law should be amended to prevent this sort of thing, although the motives for the prevention are obviously disparate. Culture editor Sonny Bunch, writing for the Washington Post, proposed that if an author/owner no longer wishes to profit from a work associated with offensive content, the work should fall into the public domain. But, as any author or copyright advocate can tell Mr. Bunch, merely divesting from the work financially does not dissociate the brand/author from the expression at issue.

But Can Everyone Please Get a Grip?

What I would say to nearly all parties reacting to this story is to please chill the hell out. Put the half-baked copyright theories back the in drawers and, by all means, stop whinging just because a franchise decides that some of its products are no longer appropriate for the children’s book market. Cultural works come and go. And nothing about the great “celestial jukebox” we call the internet has proven otherwise. On the contrary, one can argue that the short-attention-span reality fostered by social media has erased volumes of cultural literacy across all living generations. In fact, I have made that argument.

There’s a reason why illustrations of Pickaninnies and Sambos are found in museums and archives, but not on busses and billboards. Yes, these images are an unflattering part of the American story, and for that reason alone, they should not be erased from memory. But these images are rightly not part of contemporary culture because they are offensive and ignorant and anathema to peace and prosperity. Works come and go. And that’s fine.

Ever read The Castaway? Me either. It was a controversial (i.e. presumably racist) novel about the Civil War published in 1904, and it happened to be the subject of the lawsuit that gave us the first sale doctrine in copyright law. First sale is what allows you to sell or dispose of your copy of a work however you choose. And guess what? DSE’s right to stop making new copies of And to Think That I Saw It on Mulberry Street (1964) does nothing to prevent what may be a few million copies from existing as artifacts for collectors and, eventually perhaps, for archives and museums. Meanwhile, copies of the discontinued six are already selling for a small fortune on eBay and elsewhere. Thank you, first sale doctrine.

If your personal view is that nothing in the Seuss books is nearly so offensive as the Black caricatures I mentioned above, I would be inclined to agree, but that is entirely beside the point. Offense is in the eye of the beholder. And both the speech right and copyright law grant that judgment call to the rightsholder of the work. As a matter of business, DSE has every right to discontinue products it deems bad for the brand and to protect the market for the rest of the franchise. How anyone calling himself a Republican could argue with that is a mystery. But we live in strange and preposterous times.

Meanwhile, copyright law does not need amending to address a problem that does not exist. Authors and their assigns have the right to express themselves and decide whom they are willing to risk offending. And the market has a right to respond. Doubtless, there are hardline conservatives who consider The Lorax a work of liberal, tree-hugging indoctrination. And those people are free to shun the book or even write a parody extolling the economic value of Thneed production.* But otherwise, I really think everyone should chill the hell out.  

*I do not subscribe to this view; I still agree there is no need for Thneeds.

See also: Is It Fair Use to Reproduce Out-of-Print Seuss? by Aaron Moss

Decision in Seuss/Trek Mashup Case is One for the Books

Last week, the Ninth Circuit Court of Appeals issued a fair use decision in Dr. Seuss Enterprises (DSE) v. ComicMix. After oral arguments were presented in April, I wrote about this case as an example from which creators could learn what not to do when they propose to make substantial use of protected works—especially very famous works. The lawsuit involves an unpublished book called Oh, the Places You’ll Boldly Go (Boldly), a Dr. Seuss/Star Trek mashup that principally uses material from Seuss’s Oh, the Places You’ll Go! (Go!).

The appellate panel held unequivocally that ComicMix’s fair use defense failed on all four factors, and I imagine this opinion will be cited for years to come because the court so clearly inked fresh lines around several fair use principles that many avid copyright critics have endeavored to blur or erase through litigation, academic writing, or public editorial. To summarize, the Ninth Circuit opinion written by Judge McKeown held that Boldly was not a parody under factor one; that because the works copied are expressive, fair use did not favor ComicMix under factor two; that ComicMix’s use of the original works was both quantitatively and qualitatively substantial under factor three; and that Boldly represented significant potential harm to DSE’s market under factor four.

Understanding Parody

In that April post, I suggested a guideline for creators that if one truly intends to parody a work, especially a work that is instantly recognizable, that one need not engage in extensive, verbatim copying to achieve that result. In the case of Boldly, I maintain that the amount of detailed copying, which is weighed under fair use factor three, militates against ComicMix’s claim that the book is a parody at all, which is considered under factor one. As the opinion reminds us, the four factors of the fair use test are interdependent:

[The first] factor has taken on a heightened significance because it influences the lens through which we consider two other fair use factors. The third factor—the amount and substantiality of use—‘will harken back’ to the first factor. And the fourth factor, relating to market harm, is influenced by whether the commercial use was transformative.

Considering the factors in order, the court first held that:

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).

For discussion of that prior Cat case, see Stephen Carlisle’s post, but this clarification by the court in ComicMix cannot be overstated:  copying existing works into novel contexts is not necessarily parody just because it is meant to be funny. And mashup, merely because it changes context, is not inherently parody. Moreover, when one is copying famous works, the user will more likely be seen as attempting to ride the coattails of the prior author’s notoriety, unless a clear element of commentary on the original work, like parody, is present in the new work. But citing the gold standard case on transformative use for the purpose parody, Campbell v. Acuff-Rose, the McKeown opinion reiterates, “Lacking ‘critical bearing on the substance or style of’ Go!, Boldly cannot be characterized as a parody.”

It is reasonable to assume that, if the court had found Boldly to be parodic, its third factor analysis would likely be more liberal regarding the amount of the original works used; but I would argue that the amount used is a fundamental reason why no parody can be said to exist in this particular case. After all, what was actually taken? Not ideas, which are not protectable, and certainly not Seuss’s meter or rhyming schemes, which are also not protectable. The primary expressions that were copied—and stylistically copied in minute detail—were a number of visual works belonging to DSE.

So, even if we were to strip away the verses, ignored intended literary expressions in either book, and exclude any knowledge of Star Trek, an ordinary observer, comparing ComicMix’s illustrations to Seuss’s originals, would not necessarily know that Image B is a parody of Image A.

To the contrary, the observer could very easily assume that Image B is a derivative work prepared by DSE because it painstakingly matches so many elements in Dr. Seuss’s original drawings. And according to the opinion, it was apparently ComicMix’s intention to prepare an unlicensed derivative work that they hoped DSE might acquire, hence at least one reason illustrator Ty Templeton spent so many hours copying Seuss’s drawings in such intricate detail.

Keeping our focus on the fact that what was copied was a collection of visual works, note this response from the opinion: “We also reject as ‘completely unconvincing’ ComicMix’s ‘post-hoc characterization of the work’ as criticizing the theme of banal narcissism in Go!.” It is not uncommon for defendants to concoct a “parody” narrative in response to an infringement claim, and/or to misconstrue, at the time of use, the meaning of “parody” as expression that intends to be funny through the language of a prior work (e.g. none of Randy Rainbow’s anti-Trump songs is a parody of the songs themselves*).

It is the work that has been copied that must be the target of the parody, or other commentary. So, how can a visual work that is meticulously faithful to the original hope to convey parody through the act of too much replication? Something about the subsequent work must cue the observer that a lampoon of the prior work is present. Otherwise, the new work will be considered a derivative work, which only the copyright owner has the right to prepare.

As an example, imagine a drawing of Cindy Lou Who that has borrowed just enough Seussian elements that we recognize her, but she is depicted sneering and giving the Grinch the finger in response to his bullshitting her about the Christmas tree. That image by itself would plausibly be a comment on the original work in the same spirit that “Pretty Woman” was held to parody “Oh, Pretty Woman.” And the parodist would not have to mimic Seuss in every scribble and hue to achieve this result.

The third factor asks whether “the amount and substantiality of the portion used in relation to the copyrighted work as a whole” favors a finding of fair use. And a component of this analysis is whether the defendant used only as much of the original work as was necessary to achieve the desired result. In this case, because the desired result (an alleged parody) was held do disfavor fair use, then, logically, it should not matter very much whether ComicMix quantitatively copied one page of Go! or, as the opinion notes, 60% of the book along with “significant illustrations from Grinch and two stories in Sneeches.”

While that is a substantial quantitative taking, I would maintain that it was the qualitative copying whereby the defendant “replicated, as much and as closely as possible from Go!, the exact composition, the particular arrangements of visual components, and the swatches of well-known illustrations” that should have doomed ComicMix under the third factor test. Again, it is not necessary to mimic the originals so precisely in order to achieve the desired result of parody—if that purpose had been achieved in any sense.

Importantly, this opinion also reminds us that the third prong does not ask how much work was copied relative to the complete works produced by the original author. I’ve seen this one before, often in music infringements, where a defendant argues that he only copied a song or two owned by an artist with a large catalog. Here, the court rejected as a legal fallacy ComicMix’s argument that it only copied portions of five books out of the sixty produced by Dr. Seuss. Reiterating the law for users everywhere, the opinion responds that, “Under ComicMix’s theory, the more prolific the creator, the greater license a copyist would have to copy and imitate the original works. Nothing supports that argument.”

Potential Market Harm

The court’s discussion of the fourth factor also contains several important reiterations of fair use doctrine from which any creator can learn a great deal and reminds us that “potential” is the most important word in this part of the statute. This is because “potential” implies three underlying considerations:

1) what would be the effect of the specific use at issue on the market or value of the original work?

2) what would be the effect if the same kind of use were widespread among multiple parties?

3) although the copyright owner has not exploited the work in the manner at issue, does the new use constitute a derivative work, which the author is not obligated to produce or license?

In consideration of all the above, the court found that Boldly was not a fair use under factor four. As I have tried to emphasize, the amount of verbatim copying done by ComicMix produced an unlicensed derivative work, and the court noted that this placed Boldly in direct conflict with other derivatives of Go!, which DSE has licensed for the market. But perhaps the most important statement by the court regarding factor four is that it soundly rejected ComicMix’s assertion that the plaintiff bears the burden to prove potential market harm.

Not much about 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 new ground in contending that fair use is not an affirmative defense and that the burden shifts to Seuss to prove potential market harm.

Not only is that a judicial smackdown of a largely academic theory that fair use is a “right” rather than an affirmative defense, but the court further stings ComicMix’s erroneous citation of the very case that so many copyright skeptics consider a standard bearer of this invalid doctrine. The boondoggle litigation colloquially known as the “Dancing Baby” case, in which the EFF, on behalf of Stephanie Lenz, sued Universal Music Group for wrongful takedown of her YouTube video, is about as close as litigation has come to upending the affirmative defense principle of fair use. But here, the Ninth Circuit, which ruled in Lenz, states:

In an effort to distinguish controlling precedent, ComicMix argues that in Lenz v. Universal Music Corp., we deviated from our precedent construing fair use as an affirmative defense. This view misreads Lenz, which involved fair use in a different corner of copyright law, the safe harbor for Internet service providers under the Digital Millennium Copyright Act (DMCA)….In no way did we deviate from our characterization of fair use as an affirmative defense under §107. To the contrary, in addition to clarifying that, unlike copyright misuse and laches, fair use is not an excuse to copyright infringement, we reiterated that ‘the burden of proving fair use is always on the putative infringer.’

Oh, The Places We Don’t Need to Go

As I say, I predict ComicMix will prove to be an important and instructive case going forward. It should not be misread as “the big guy defeating the little guy” because, in fact, if ComicMix’s legal arguments were supportable, such a ruling would make independent creators of fresh material more vulnerable to substantial takings by large entities. It also should not be understood as a referendum on mashups in general, as the court explicitly stated that mashups can be fair use, just not this one.

In the end, I personally have sympathy for the ComicMix guys, recognizing that they put a lot of work into a project based on some very dubious copyright theory. But especially because the trio of creators who decided create Boldly are all professionals with skills and talent, the underlying lesson remains that it is almost always better to invent than to copy—let alone to copy legendary works as extensively and precisely as was done in this case.

*I cite Randy Rainbow as an example typically misunderstood as parody, and make no comment on the legality of his videos re. copyright.

What the Age of the “Hack” Teaches Us About Copyright Terms

(Originally published at Copyright Alliance as part its “Secret History of Copyright” series of blogs.)

“Students of the nineteenth-century drama come sooner or later to the realization that the most important dramatist of the period was Shakespeare.”  – Marvin Felheim, The Theater of Augustin Daly (1956) –

Most people are probably familiar with the word hack as a pejorative for a bad writer, or as a neutral colloquialism for a cab driver, but few may be aware that both connotations derive from the same source. Hackney, according to Merriam-Webster, is a 13th century term for a horse “suitable only for ordinary riding or driving.” Consequently horse-drawn hansom cabs were manned by hackney drivers, and the word hack for cabbie persisted beyond the invention of the automobile.

Meanwhile a hack writer was largely (if not exclusively) a phenomenon of the burgeoning American theater industry, especially in postwar New York. The Civil War transformed the city into an industrial powerhouse, and this spawned a new and growing middle-class, which meant that more Americans were suddenly at their leisure to attend theater performances. But finding a supply of new dramatic material was another matter. “There are no American works on American stages,” complained one critic of the period.

Due principally to the absence of international copyright agreements—a condition that lasted roughly sixty years from first debates on the matter to first adoption in 1891—a large volume of American theater production was based upon hastily adapted or translated literary and dramatic works from Europe. And the writers paid to do all that frenzied scribbling were called hacks.

What the copyright watcher may find interesting, though, is that this era for the American theater—a market largely predicated on a copyright free-for-all—resembled a world that contemporary public domain advocates seem to project as ideal for creativity. It was not. Least of all by contemporary standards.  

Most advocates for the primacy of the public domain espouse a general hypothesis that the duration of copyright protection fails to “promote progress” by draining the common well from which all authors must drink. This assertion endures, despite considerable evidence that contemporary authors (pandemics notwithstanding) have been producing new works much faster and more abundantly than the market can consume them.

Taking a very literal view of the author’s need to “build upon” precedent works, critics of copyright terms allege, almost as a moral imperative, that works must fall into the public domain more rapidly than they do. And this thesis is usually supported by hypothetical predictions that may best be described as the Who knows what might be done? school of copyright theory. But rather than gaze bewilderingly through a fog of possible futures, we can instead focus lucidly on the microcosm of mid-late nineteenth American theater, when the market conditions looked very much like the public domain paradigm that contemporary term critics believe should be restored.

Early Broadway was certainly an exciting market, if not a literarily sophisticated one. Centered around 14th Street in Manhattan, theater managers were constantly swapping out their playbills in a time when a month was long run for a show.  Audiences were more often drawn to see their favorite stars, or by on-stage spectacles like city fires and storm-tossed ships, than they were by playwriting itself.

It would not be accurate to say that all writers of the period lacked talent, or that some fine, original works did not emerge between the cracks. But even one of the best dramatists of the era, Dion Boucicault, complained that he could be paid more for a hack adaptation of an unlicensed “safe bet” than he could for a new and original play. This phenomenon mirrored the stifling effect that the lack of international copyright agreements had on early American publishing inasmuch as the theater industry likewise feasted, for a while, on a steady diet of transatlantic poaching rather than invest in new material.

The absence of international copyright agreements, between roughly 1865 and 1881, was undistinguishable from having a very large volume of works in the public domain—a condition that many of today’s copyright critics advocate rather strenuously. Yet for all the market activity theater managers derived from all that rampant appropriation, many of the dramatic works themselves were, in every sense, hackneyed retreads of works in the commons. Not surprisingly, hack work produced a lot of disposable plays, while the market forces of the time stymied development of more inventive playwriting.

Appropriation in nineteenth century theater was so constant that many authors (e.g. Dickens) found various workarounds to earn at least some revenue from play adaptations that they could not prevent or control. Meanwhile many dramatists were themselves such incorrigible pirates, that there were limits as to how much they could accuse one another of infringement. Not that litigation did not occur among playwrights—some landmark cases happened during this period—but the point is that nearly all dramatists of that era were very liberally drinking from a common well, just as contemporary public domain advocates would have them do.

But by the turn of the century, contemporaneous with the adoption of international copyright agreements, dramatic works authors turned their attention inward, rather than outward, for source material. Henrik Ibsen, usually credited as the father of modern drama, revealed how theater can explore the labyrinths of human psychology, that a play can be about the subtle dynamics of a family within the four walls of an ordinary home. Naturalism changed everything, including audience expectations, as the demand for subtlety in both subject matter and performance crossed into the 20th century.

Because the quantum universe of human drama is, in fact, a bottomless well of source material, it is no accident that as copyrights grew stronger, neither playwrights nor audiences suffered from a dearth of appropriation. On the contrary, not only does O’Neill’s Long Day’s Journey into Night not need to take anything (in a copyright sense) from A Doll’s House, but no modern audience would want it to. By the time we get to Pinter’s minimalist masterpiece Betrayal, or anything by Beckett, we recognize that a finite universe of common themes is infinitely divisible into an endless range of expression through dramatic works.

The aesthetics that molded creative expression throughout the twentieth century reveal that originality is as limitless as copyright’s protections are nuanced. The skeptics who claim that contemporary authors suffer for want of more works in the public domain not only tend to misunderstand the creative process of individual authors, but they also fail to acknowledge that history has, at times, shown us what their ideal paradigm would look like. And there is a reason why we still refer to those authors who rely overmuch on using the works of others as hacks.

Image: Street types of New York City: Hansom driver standing in front of horse and cab. , ca. 1896. Photograph. https://www.loc.gov/item/2002699101/.