In Justice Kagan’s blistering dissent in AWF v. Goldsmith, she stated the following:
If Warhol had used Goldsmith’s photo to comment on or critique Goldsmith’s photo, he might have availed himself of that factor’s benefit (though why anyone would be interested in that work is mysterious). [Emphasis added]
Kagan’s sweeping view that she could not imagine why there would be interest in a Warhol that comments upon the Goldsmith photo is, I assume, careless editorial—overlooking facts relevant to the instant case and, more broadly, ignoring the significance of commentary at the heart of the fair use doctrine. It is important to keep in mind that, but for this litigation, Goldsmith’s unpublished photo of Prince is not widely known, and it was certainly not known in the 1980s when Warhol made his screens. So, Justice Kagan is right to note that commenting upon a work that nobody had seen would be an absurdity but wrong if she means to imply that the courts should not look for “critical bearing” on the work used when weighing factor one.
You can’t tell a joke about a rabbi, a priest, and a monk walking into a bar if the listener doesn’t know what those three words mean. By this same principle, certain types of comment about protected works are impossible unless the work used has at least some presence in the minds of the intended audience. Parody is futile without the intended audience having an awareness of the work being lampooned, but education, criticism, or news reporting are all paradigmatic purposes under fair use that do not require the intended audience to have any familiarity with the work being used.
All three of those exemplary purposes may be introducing a work to the intended audience for the first time, but in those cases, the comment is likely to be explicit, in written or verbal form to discuss or critique the work being used. In such instances, it is relatively easy to determine, for instance, whether an article or blog post displays an image for illustrative purposes (disfavoring fair use) or displays an image for the purpose of critiquing the image and/or the artist (favoring fair use).
Finding “critical bearing” in a use may be more nuanced when one expressive artist uses another expressive artist’s work—e.g., a visual work commenting upon another visual work—and here, the notoriety of the work used likely plays a more significant role. For instance, in Leibovitz v. Paramount, we have a parody of a visual work made by another visual work. Observers (especially at the time) saw the image of pregnant Leslie Nielsen and were familiar with the iconic image of pregnant Demi Moore that was being lampooned. And to achieve the parody, it was necessary to copy the heart of Annie Leibovitz’s expression.
Left: Demi Moore by Annie Leibovitz. Right: Movie poster by Paramount Pictures.
Of course, notoriety of the work being used entails a balancing act for the follow-on artist. On the one hand, the work used must be at least somewhat well known for the observer to perceive any comment being made about it. At the same time, the more famous the original work, the more the follow-on artist may be found to be riding the coattails of that fame and “avoiding the drudgery of working up something new.” In Dr. Seuss Enterprises v.ComicMix, the follow-on artists were found to have copied a substantial amount of the original expression—both quantitatively and qualitatively—of some of the most famous visual works ever made.
Left: Image from Dr. Seuss’s “The Zax.” Right: Image from ComicMIx’s “Oh, the Places You’ll Boldly Go!”
And although the defendants in ComicMix attempted to argue that there was parody in their mashup book, the asserted commentary was (as in Warhol) about topics or themes unrelated to any “critical bearing” on the works used. As described in other posts about ComicMix, the extensive amount of precise copying militated against fair use because the result was a book that any observer could mistake for a derivative work produced by the rightsholder. Thus, the “riding coattails” consideration weighs heavily against the follow-on creators.
Must All Observers Be “Ordinary”?
In Campbell, Leibovitz, and ComicMix, we have examples of wide-audience fame, but small-audience notoriety should not necessarily disqualify the follow-on artist from a reasonable claim to have expressed “critical bearing” on the work used. I once had a conversation with Professor Lateef Mtima about whether a jazz artist could successfully parody a well-known jazz work. We all might recognize, for instance, “Round Midnight” when we hear it, but if a new artist were to riff on that piece and interject elements that are intended as comment upon the original, it would probably take a very sophisticated listener to perceive the nature of that comment. If it were even possible.
As an exercise, this raises the question as to whether “critical bearing” on the work used must always be reasonably perceived by an “ordinary observer,” or whether the intended audience may be quite narrow. In the fine art world, where Warhol lives, is it necessary that everybody “get it,” if comment is in fact present? If fifty critics and a thousand art afficionados understand the comment being made, is that sufficient to find that factor one favors the use? I would predict that it may be sufficient for factor one, but that the uniqueness of the audience could militate against finding that factor four favors the use, depending on the market for the original.
I assume Justice Kagan’s off-the-cuff remark that she could not imagine interest in a Warhol that comments upon the Goldsmith photo was hyper-focused on the two works at issue—a parenthetical jibe in a snarky dissent, which overlooks the relevance of the photo’s obscurity at the time it was used. As such, Kagan inadvertently advises creators to consider the notoriety (intended audience’s awareness) of the work they propose to use and how that notoriety supports or rejects any claim to “critical bearing” as a result of the new use. Justice Kagan may not imagine such a thing, but artists should, if they want to make fair uses of protected works.
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.
I listened yesterday morning to oral arguments presented (via video conference) on Monday before the Ninth Circuit Court of Appeals in the case Dr. Seuss Enterprises v. ComicMix LLC. As a quick recap, in 2016, Dr. Seuss Enterprises (DSE) filed a copyright claim against publisher ComicMix over a mash-up book called Oh, the Places You’ll Boldly Go!. The author/illustrator team who created the work used iconic illustrations from various titles in the Seuss portfolio, and combined the images with themes and characters from the Start Trek series. In 2019, a California District Court found that “Boldly” was fair use, applying first and fourth factor analyses that many creators found troubling.
For deeper dives into the legal particulars, see my post from last August and/or posts here and here by Stephen Carlisle of NOVA Southeastern University. But suffice to say, I think most copyright watchers would agree that the appellate panel also found the District Court’s fair use analysis disconcerting and will at least remand, if it does not overturn the decision. Already quoted on social media by copyright advocates is this riposte by Judge M. Margaret McKeown:
“The district court seemed to take the position that if you take existing expression and then you interspersed it with new expression, you have a transformative work. That is a definition of transformative use that I haven’t seen before. It would seem to sting the notion of copyright protection, and almost everything would be a fair use.”
While it can be folly to read too much into judges’ comments at oral arguments, the panel did seem to express concern with three key points in this case: 1) that the lower court may have erred in finding “Boldly” a transformative work under the first fair use factor; 2) that the lower court applied the wrong analysis in considering the potential market harm to DSE under the fourth fair use factor; and 3) as a procedural matter intertwining the two factors, that even a correct finding of transformativeness does not shift the burden from the defendant to the plaintiff to disprove (or prove) potential market harm under the fourth factor.
Now, I could break down what that all means, but would frankly rather wait until the court renders its decision, and, in the meantime, note that the complexity implied by these considerations leads to a different proposal I would make to most creators out there: Don’t do this to yourselves. There are way better places you could go.
If you have talent and a desire to express something to the world—and you would rather spend your time creating works than fighting legal battles—the decisions made by “Boldly’s” authors in this instance provide a pretty good guide (Things 1-5, if you will) for avoiding legal complications, even if you want to parody classic material.
Thing One – Learn What Parody Is
Thanks, in large part, to the volume of works used in funny YouTube videos and such, the word parody is too often invoked to describe every use of a work for the purpose of comic effect. This is an error, both as a literary and legal definition of parody. As discussed in more detail in this post in 2014, a true parody must comment on the original work being used. When ComicMix attorney Dan Booth was asked about this distinction on Monday, he averred that “Boldly” parodies the original work because Seuss’s character is “individualistic and narcissistic,” while Star Trek conveys themes of “teamwork” and “universalism.”
While I am in no position to judge evidence I cannot fully review, that sounds like a very slippery (i.e. loose) grasp on any claim to parody. Merely using protected works in a new context does not favor a finding of fair use. If “Boldly” is indeed a parody, it should directly lampoon the values or ideas expressed in “Go” by mocking or critiquing Seuss’s original themes of individual empowerment through imagining possibilities. (And even then, we get into some murky waters with regard to copying visual works for the purpose of commenting on textual expression. But let’s not go there, boldly or otherwise, right now.)
I would further argue that the authors’ use of illustrations from multiple Seuss books militates against a finding that “Boldly” is directly commenting upon “Go.” In fact, one illustration from “Boldly,” shown on this ComicMix post from 2017, depicts two Spocks in the manner of Seuss’s The Zax, and the text actually reinforces a theme of individuality. So, maybe there is real parody in “Boldly” somewhere, but it doesn’t sound like there is.
Thing Two – A Mashup is Not Automatically Fair Use
At oral argument, Booth described the mashup as an “innovative form that takes different sources and puts them in dialogue with one another.” Okay. But even if that were a universally applied description of the mashup aesthetic, it does nothing to place the form in any special category of consideration under a fair use analysis.
As a general statement, one can assume that, for instance, two sources “in dialogue with one another” will create a third voice, and that this would be consistent with the purpose of fair use, but any given mashup will be subject to the same case-by-case analysis that will be applied to any other type of use. Moreover, because mashups generally involve works owned by more than one copyright owner, they can invite more than one legal complaint.
Thing Three – Apply an Inverse Rule When Creating Parody
One of the errors I find most troubling in this case, even to hear it presented, is the implication that ComicMix needed to create imitations of Seuss’s visual works in order to convey the parodic nature of “Boldly” (assuming parody is even present). This argument is anathema to what I would describe as an inverse proportion rule that says: The more widely recognized the original work, the less the parodist needs to copy in order to express a commentary about the work.
Seuss’s illustrations are so iconic and so universally recognized that one need not copy every tittle and jot with the precision of a Talmudic scribe in order to lampoon the work—if indeed parody is the real goal. On the contrary, a true parodist would seek to mock an artist’s visual language by selecting certain characteristics to overstate or understate, rather than create a work that so slavishly mimics the original that an ordinary observer would fail to perceive that any visual parody exists at all.
This is one of the weakest aspects of ComicMix’s appeal to parody in my view—that an average consumer, seeing “Boldly” on a store shelf, might easily think that DSE had produced the mashup. Never mind the trademark implications, but a sendup of Dr. Seuss should be almost immediately recognizable as not Seuss and yet Seuss-like enough to know that a joke is being conveyed. We see examples of effective parody through limited copying all the time. Hence the general fair use guideline, to take only as much of the work as necessary is, in fact, easier to apply when parodying the most recognizable works.
Thing Four – Be More Creative
Let’s be honest. A great deal of the time, making substantial use of existing works—especially works as famous as the Geisel oeuvre—is motivated by marketing more than a burning need to express something new. Again, I won’t judge “Boldly” as a work without being able to read the whole thing—and its creators are experienced professionals—but Seuss is such an obvious source for this kind of appropriation that it is difficult to see such uses as more than gimmicks, seeking to profit off the notoriety of the original.
My oldest kid and I used to riff on the idea of famous Nazis reading Seuss-like works to children, including the book Oh, Zee Places You Vill Invade (and let’s not get started on the Sneetches with the stars.) But if we had developed that inside joke into a book a la “Boldly,” would it imply transformativeness under a fair use analysis?
The target of the mockery isn’t Seuss, it’s Nazis. Seuss is merely an obvious context in which to place Nazis for satirical effect, but that would not make this hypothetical use a fair use. More specifically, if we did produce such a book, would we need to slavishly copy Seuss’s illustrations to make the joke work? Nope. Readers would get it through the use of illustrations that evoke Seussness without copying Seuss.
Thing 5 – Work Around Copyright
Finally, if the goal is to produce new creative works—rather than spend years in copyright disputes—it is worth remembering the many, many stories in which creators start out intending to use existing works and then, by navigating around copyrights, discover new and better ideas that would not have occurred otherwise. Happens all the time.
I wrote about this process in 2013, and that post was later cited in a paper by scholar Joseph Fishman called Working Around Copyright, in which he describes, in legal-scholar terms, what millions of creators already know: that overcoming obstacles to initial creative instincts tends to produce better results. And when that first instinct is to copy protected works, there’s a good chance that the still-untapped idea is probably much better.
The Illusion of More is my personal blog from December 2011 to December 2025. As of February 2026, I am no longer posting new blogs or other content, but I hope you enjoy this archive. Please do not attribute any of my writings here to my current or previous employers.
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