Things Creators Can Learn From Seuss v. ComicMix

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.  

© 2020, David Newhoff. All rights reserved.

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10 comments

  • I think you’ve missed the point that ComicMix no longer needs to prove parody. That ship sailed early on at the district level when Judge Sammartino ruled that Boldly was NOT a parody. Had she ruled it a parody, then game over because…y’know…protected speech. But the reason we’re still here four years later is that Boldly was NOT ruled a parody.

    So what is it? Well, it’s a mash-up. And that’a a new art form that requires some caselaw to define and clarify. I doubt the rulings in this case will be the final word, but they will help steer future decisions…and that is key. Even though I’ve been publicly and wholeheartedly on the side of Team Mash-up, I’m glad DSE is drawing this out (despite the financial drain on ComicMix). One judge’s voice isn’t enough in such a precedent-setting case. So let’s allow McKeown, Nguyen, and Smith to add their opinions into the mix (no pun intended).

    My gut feeling is this winds up 2-1 in favor of ComicMix based solely on the questions from the three judges. But of course, we all know that reading the tea leaves and/or the minds of federal judges is a fool’s errand. At worst, I suspect this case gets remanded with instructions to shift the burden on the fourth factor back to the Defense. I can’t imagine the appellate judges overturning the ruling of Fair Use AND determining summary infringement. That’s a bridge too far, and even Plaintiff’s counsel acknowledged that they’d be okay with another shot at the district level.

    But understand that, at no point, will Boldly be held up as a parody. ComicMix is still calling it a parody because…why not? The creators went into it from the first e-mail response with the idea of envisioning the work as a parody. And that should count for something (even if it isn’t a parody), as they never set out to consciously infringe. They really did think they were in the clear on this. Sure, that’s not an affirmative defense, but DSE has consistently tried to paint the defendants as nefarious copiers. They weren’t. They were trying to mash-up Dr. Seuss with Star Trek to create something new and unique. The district court agreed that that they had a Fair Use right to do so. So ComicMix wasn’t completely crazy because at least one Ninth Circuit judge agreed with them.

    You are correct in pointing out that not every mash-up should automatically qualify as fair use. If I take a song from Hamilton and then play a song from Wicked right after it…I don’t think that counts. But if I create the story of the the green-skinned Elphaba coming to New York, singing rap songs with new lyrics, and rising to prominence during the American Revolution while riding a flying broomstick, who’s to say that isn’t Fair Use? (“I think I’ll try defying tyranny…!”)

    A final question for you to ponder, if I may, David…

    Let’s assume for a moment that Boldly is an infringing work and they should have sought a license from DSE. What character or characters should they have licensed? I don’t see one. Even the little kid from Go! is dressed as Captain Kirk. He looks pretty different. ComicMix didn’t use any direct illustrations, settings, or objects created by Seuss. Scotty’s transporter looks very different from the Sneech star machine. There’s no Who in sight, and no Cat in the Hat either. They don’t even use any of the original Seuss text. So what precisely should ComicMix have licensed? And what does DSE have a legal right to license? They can’t license Spock or Klingons. They can’t license “look and feel” or drawing style because that is too broad a scope of ownership. The Grinch is the same general shape as Foghorn Leghorn. So if ComicMix draws the Gorn with that same shape, DSE can’t approve or license it any more than Warner Brothers or Viacom CBS can.

    Anyway, David, thanks for reading my ramblings. You’ve written a solid blog. I wrote my own blog on this week’s proceedings if you’d like to check it out and pay me back with a long-winded comment on my site…

    https://fanfilmfactor.com/2020/04/30/pandemic-gives-fans-a-rare-glimpse-into-a-fair-use-courtroom-hearing/

    • Hi, Jonathan. Thanks for writing such a thorough and thoughtful comment. Due to time-constraints, my response my not do it justice, but I hope the following covers your main points:

      As a general note, I recognize that the “Boldly” authors were fully aware of what they were doing, so much so that they alluded to probable litigation in their Kickstarter campaign. Their cognizance of the process and legal implications are the reasons I wrote this blog in the form of a guide to creators, who might not be so eager to go looking for a lawsuit.

      In that context, although you are correct that the district court rejected parody in finding “Boldly” to be “highly transformative,” the authors called the work a parody at the outset (on Kickstarter), presented it as a parody in the lower court, and re-asserted a very loose element of parody at oral arguments on Monday. Hence, for the creators reading this post, I keep parody in the foreground because it remains a living perception about the nature of “Boldly.” But even in the case itself, I would not call the parody issue a wholly settled matter; the appeals court may find error in the district court’s first factor analysis and may allude to lack of parody (i.e. comment upon the original) in its opinion. I think the panel should see error in the lower court’s finding of “transformative” here, because the reasoning appears to extinguish the derivative works right, which is a major problem with the “transformative” doctrine.

      As for the mashup, your comment got me wondering how novel a form it really is. The term is relatively new, a product of the YouTube platform, and the genre is now widely exploited because digital tools make it so easy for both professionals and amateurs to create. But I’m not convinced that the act of mashing up changes the fair use analysis very much except, as mentioned, to potentially infringe works owned by multiple authors. In your “Wicked” example, the number of elements you’ve brought together does nothing to distract from the easy conclusion that you will either need permission for the music, or feel that you are on solid ground that your use is fair because it comments upon “Defying Gravity” itself. Using songs with new lyrics for the purpose of satire, a very common use, is not considered a fair use, although the whole “transformative” thing has created confusion here. As a practical matter, these kinds of uses are let go all the time for YouTube videos and such, but in a potential litigation, we have ample case law with which you answer your question.

      As for your licensing question, what I think you’re really asking is, What can DSE claim to be protecting here? And again, we have sufficient case law for guidance. The short answer is that each illustration (the ones I’ve seen) copies the “soul” of a Seuss work by means of selecting a preponderance of Geisel’s creative choices to imitate — line weights, colors, compositions, character styles, background elements, and so on. Without getting deep into the legal weeds, courts have guidance for identifying when the “soul” of a work has been copied. Here, the layman’s way I would describe it is that the more a new visual work could theoretically pass as a forgery made by the original artist, the more likely the user has exceeded the boundaries of fair use as a defense. As mentioned in the post, this is the most problematic aspect of this case for me; I reject the assertion that the amount of imitation used in “Boldly” was necessary to the purpose of the expression. To hold the opposite view runs smack into the derivative works right again. Simply put, “Boldly” looks too much like a Seuss work–like something DSE has the right to license or not.

      Thanks again for your comments, and I hope these answers are satisfactory, even if you do not agree with them. I look forward to reading your post, though I cannot promise an equally long response there.

      DN

      • Thank you in return for an equally well-thought-out response, David. I’ve love to indulge in a little more back-and-forth, if you’re so inclined. If not, no worries.

        The thing that fascinates me most about intellectual property law is the push/pull struggle between protecting creative rights and the First Amendment’s guarantee of freedom of expression. The argument of some is that “talentless” mash-up hacks aren’t bothering to exercise true creativity and instead have to “rip off” the works of actual talented creative people. In many ways, I believe this minimizes the creativity inherent in the development of a mash-up. Think of Andy Warhol. Does the fact that he was so “lazy” as to not even bother to design his own soup can label take away from the work he did in painting his famous Campbell’s piece(s)? What about Weird Al Yankovich taking the lyrics of “The Brady Bunch” and putting them to the tune of “Safety Dance” by Men Without Hats? Or closer to home, how about “Who’s Holiday,” the derivative-yet-transformative play found to be Fair Use where Cindy Lu Who from “How the Grinch Stole Christmas” is now a a bitter, middle-aged woman in a dead-end life?

        Each of the above examples required talent, creativity, and dedication to bring to fruition. Do mash-up and/or transformative artists stand on the shoulders of others? Certainly. They have little choice because what is their alternative? Campbell’s would never have released their trademark logo or allowed creative interpretations of it in other colors. And while Weird Al does get permission from the artists to do his parody songs, the law has ruled he doesn’t have to (’cause, y’know, parody). But are his songs indeed parodies or simply mash-ups? Al combines “Star Wars” with the Kink’s “Lola” or Don McLean’s American pie. Is that a parody or a mash-up? The law says it’s a parody (or so all of the articles tell me!). I say it’s just a mash-up. If Weird Al didn’t get permission from the record labels and/or Lucasfilm, would he be in danger of losing a major infringement lawsuit?

        And what would your advice be to Weird Al based on your blog above? It sounds like, rather than turning “Lola” into “Yoda” that you would tell him to simply write a new song with his own unique sci-fi characters. Yes? Such a loss that would be to the world of comedy music, say I.

        And this, my friend, is why I believe so strongly in the Fair Use doctrine and feel that “transformative” is so important to the determination of whether creator’s rights trump freedom of expression or vice-versa. This country (rightly!) affords both protections. But because they are so often mutually exclusive, this is the precise reason why we have courts, judges, and legal guidelines that permit the black and the white to coexist within a subjective gray area.

      • Hi, Jonathan. I don’t mind some back and forth at all, and am about to post a comment on your blog, but I have to jump onto a project and may have to bail on this thread for a little while. In the meantime, I addressed many of the questions you raise in this post from 2014 https://illusionofmore.com/what-is-parody/. Will respond to your other comments ASAP. Thanks.

      • So, reviewing this comment again, the main thing that I believe is not answered by that 2014 is the “talentless hack” accusation. That may be the view of some, and may even apply to some creators of mashups, but it doesn’t matter with regard to copyright. Copyright is generally agnostic with regard to the process. The protections granted the original author are not made stronger based on the amount of work she did in the first place, and limitations like fair use are not more expansive based on amount of work exerted in the use. Protection is said to be “thicker” when a work has more creativity. That’s a subjective, case-by-case analysis itself, but the example I often use is a photographic portrait with creative, staged elements has thicker protection than a headshot against a plain background.

        I am also fascinated by certain tensions in copyright law, but frankly find the conflict with the speech right to be something of a doctrinal bogeyman. I most recently covered this topic in this post, which generally constitutes my response on the issue to date: https://illusionofmore.com/copyright-and-the-speech-right-are-they-in-conflict/

        Thanks again for engaging!

      • The most salient thing (for me) that you said in your linked blog was: “I would counter that copyright law often helps to separate the meaningful speaker from the lazy, crass opportunist or plagiarist.” I agree!

        The question in this instance of DSE v. ComicMix et. al. is which are we dealing with: meaningful speaker or lazy, crass opportunist or plagiarist?

        And that, my friend, is why we (you and I and DSE and ComicMix and the Ninth Circuit) are here. There is no black-and-white in this. I look at Boldly and see a fresh and creative merging of two unique and completely different franchise properties into a book I would gladly pay to own. I also own a copy of Go! and will likely buy another copy when my son graduates from high school in nine more years (time goes so fast!!!). So in that way, owning the mash-up would not preclude me from also buying the original…but I digress.

        Let’s live in the real world for a moment. Boldly would NEVER happen were it required to be licensed. Aside from the expense (Star Trek licenses start at $50K up front plus royalties, and I have no idea what DSE charges), there’s simply no way that DSE’s licensing department would want the hassle of having to coordinate with ViacomCBS Consumer Products…and vice-versa. Also, I would imagine that the onerous restrictions and conflicting directives of serving two masters would quickly overwhelm the ComicMix creators, who would surely throw up their hands in frustration at some point and walk away. In such a case, copyright protections can indeed strangle creativity and freedom of expression.

        So the other question becomes: is the world better served by preventing Boldly from ever existing, or is the world a richer place for having Boldly in it and available? (continued in next comment)

  • (continued from previous comment)

    Now, I agree that, were David Gerrold and Ty Templeton to simply create “Scotty Hears a Tribble” or “How the Q Stole Christmas,” there would be more lazy plagiarism going on than true meaningful speech. But they didn’t stop there. Boldly truly is transformative–at least in my subjective opinion. Your warp engine efficiency may vary. But that’s why the copyright law leaves the interpretation of the four Fair Use factors so open: because the question of plagiarism versus meaningful speech really should be a case-by-case consideration.

    • David Newhoff

      An important word in my sentence you quoted is often, because I am speaking generally in rebuttal to a generalization. But the more nuanced reality is that copyright and the courts are agnostic with regard to the social-value qualities of a given work; courts are not supposed to be art and culture critics. In short, it does not matter if “Boldly” is considered good work or bad work, or if Gerrold and Templeton feel they approached it with deep respect for Seuss. That’s all well and good, but it has little to do with the legal issues at hand.

      Fair use is grounded in two principles — the protection of free speech and the expansion of the constitutional purpose of copyright to “promote progress.” But that’s a general statement. If there were no limits on the principle, then all uses of works would easily meet those two broad standards, and copyright would no longer exist–and neither would fair use. One of the limits on fair use is to weigh the amount of copying done by the user, relative to the purpose of the new expression. That’s the crux of the issue in this case.

      Templeton’s illustrations copy too much Seuss for the purpose of the expression in “Boldly.” Were the illustrations Seuss-like rather than rigorous imitations of Seuss, this would be a different conversation, or it would not be happening at all because DSE’s attorneys can probably recognize the distinction when they see it. Coincidentally, I just watched an episode of Community, which cites cultural references all the time, and they employed yet another Star Wars gag with music that is clearly not the Williams score, but is clearly evoking the Williams score. That’s what the illustrations in “Boldly” should have been if they wanted to make this work without a copyright stink.

      At the point at which the user copies more than is necessary, particularly with famous works, there is at least a hint of crass commercialism in the choice, which ceases to be new expression and begins to encroach on the creative and market territory belonging to the rights holder. In this case, “Boldly” is an unauthorized derivative work BECAUSE it copies much more than is necessary to the new expression. The illustrations are not Templeton’s interpretation of Seuss but his painstaking imitation of Seuss. And that makes all the difference.

      Additionally, because “Boldly” comes close to a mashup DSE could conceivably produce or license, this actually disfavors ComicMix’s claim as a fair use. A more extreme, perhaps even offensive, use that mashes Seuss with something anathema (like Tarantino characters) might have a stronger argument as an expression well outside the market belonging to DSE. But still, the amount of copying would be a major factor in the analysis. If one made Oh, the Motherfuckers You’ll Kill and only employed minimal copying to convey Seussness, the joke would be clear to readers, and DSE would probably have a very hard time stopping it under the precedent set in Campbell.

      Finally, and most concerning to rights holders beyond DSE, the district court’s fair use reasoning is deeply flawed and has implications well beyond this case. For instance, her incomplete fourth factor analysis would empower a larger entity to more easily usurp the market of the startup artist. It is always important to compartmentalize what you like (or don’t like) about a particular work, to look at the legal reasoning being applied, and to recognize its implications beyond the case at hand.

  • And now we come to the heart of our disagreement, my friend! You think Ty Templeton copied too much. I think he copied just enough. This is why an umpire (or judge) is needed.

    Let’s look at two examples cited by Judge Sammartino, which you can view here:

    https://fanfilmfactor.com/wp-content/uploads/2017/06/Oh-the-places-youll-boldly-go2.jpg

    In the top example, what precisely was “slavishly copied”? Three elements could be called “slavishly copied and ten elements are completely original…meaning it’s 75% original and 25% copied. Is that too much or just enoug?

    And in case you’re wondering how I came up with that breakdown, let’s take a closer look. The drawing of the machine, the pose and smile of Scotty, and the horizon line exist pretty much unchanged in both drawings. What is not copied? Well, there are no Sneeches in “Boldly,” so there’s 8 or 9 elements on the page which are entirely original creations. Their sizes are different than the Sneeches, their coloring is different, the Sneeches have long necks and beaks and are wearing no clothes, while the Starfleet officers have human heads (well, except Spock) and bodies and are wearing clothes. The tenth element, the highly detailed control console of the transporter, has no equivalent, as Seuss’ work in the original just shows a basic table covered with cash.

    In the bottom example, almost nothing was “slavishly copied” other than the dirt and the pose of the character on the right. And poses aren’t copyrightable. But even if they were, what else has been copied? The two Zaxes are typically Seuss-like characters: naked, furry, with cat-like mouths and wiry hair and strange bushes around their necks. Templeton drew two Spocks…and very recognizably so. Neither was “slavishly copied,” and if you try to convince me that either Spock looks like a Zax, then one of us needs a trip to his eye-doctor once the pandemic is over. And of course, the original Seuss drawing has nothing in the background of the desolate desert. Templeton added a completely original drawing of a number of kids playing with a ball by a playground slide.

    These are just two examples, but I’ve got a bunch more that I could analyze the same way…as Judge Sammartino did. In her opinion, she felt the drawings were different enough to justify a determination of both transformative and using only what was necessary–two of the four factors of fair use. You disagree. I would compare this to challenge call in football. You say the receiver’s left foot was out of bounds when he caught the ball; I say he was in. The ref called it a catch. You don’t agree because it still looks like the toe is on the line. Now DSE is challenging the call and asking for a review from upstairs.

    And that’s pretty much what we have here. You think the district judge screwed up. I don’t. We both have our reasons why, and now the replay officials will watch the play frame-by-frame. In my opinion (above), the frame-by-frame analysis shows that the drawings were both transformative and did not use any more than was necessary to establish the source material as being from Dr. Seuss…a necessary element in the creation of an effective mash-up (one needs to recognize what is being mashed up).

    And that’s why this case is so important, David! If a mash-up requires a certain amount of copying, then how much is too much? If any copying is bad, then mash-ups as a form of expression will disappear forever. If “take as much as you want” becomes the norm, then copyright protections go out the window. This is why the Ninth Circuit needs to start with this case to begin defining where the “line” is…and I’m certain that line will wobble and slide back-and-forth across the gray area a lot in future infringement/fair use cases.

    A final clarification (before I write too much again…um, too late!) is that I didn’t mean to imply that the judges at any level should take into account the artistic/social/political/whatever value of the work in question nor how lovingly it was created. Infringement is still infringement if/when it happens. I was simply speaking in a larger, more conceptual sense. If ruled to be infringement, “Boldly” would never happen. It just wouldn’t. DSE doesn’t do mash-ups, and even if they did, Star Trek would be light-years beyond anything practical or affordable by ComicMix. So that’s why I rooted for “team Mash-up” to begin with and why I still root for them. I think “Boldly” should exist in this world, freely and without stigma. Now, would I be rooting as hard for “Oh, the Motherfuckers You’ll Kill!”? Hard to say, but as I do some soul-searching as I type this, I think that–were the amount of copying appropriate as I believe “Boldly” to be–then yes, I’d root for that two.

    In my opinion, the pendulum of copyright protection has swung a little too far in recent years…now outliving the death of the original author by 75 years. I still believe copyright, trademark, and patent protections are a critical and essential part of a healthy capitalist system, spurring on creativity and innovation. But such protections, when too broad and overreaching, can just as easily choke off creativity and innovation. And this is one of those times I feel the latter is in play.

    Let’s wee what the replay officials have the say. 🙂

    P.S. – Thank you again for indulging this lengthy diatribe. I am thoroughly enjoying the debate, but I appreciate that you have a full life and that you are putting a great deal of time into this back-and-forth with very well-reasoned and thoughtful (and most of all, civil!) responses. I applaud you, David!

    • David Newhoff

      So, to begin with, let’s leave copyright terms and other complaints aside. These are all separate matters. Next, now that I have re-reviewed Sammartino’s opinion, I will note than even she found the fair use argument a tie and, therefore, denied ComicMix’s motion to dismiss on those grounds.

      Then, it’s important to remember that she was asked to rule on motions to dismiss, including on the basis of fair use, and not required to perform an actual “substantial similarity” test. Hence, she alludes to a very loose form of the intrinsic test in her weighing of factor three and holds that Templeton took “no more than necessary.” I disagree with her for three reasons.

      First, her factor three consideration is influenced (as it should be) by her finding of “transformativeness” under factor one, but I believe she makes the error of many district courts by confusing transformativeness with the act of placing a work in a new context. This is too broad an application of the doctrine. Sammartino: “But although Boldly fails to qualify as a parody it is no doubt transformative. In particular, it combines into a completely unique work the two disparate worlds of Dr. Seuss and Star Trek.” By that standard, all mashup instantaneously becomes “transformative” under factor one, and this, as discussed, extinguishes §106(2), the derivative works right.

      Second, I personally think she is grasping at tiny straws of distinction that do not support a well-reasoned intrinsic test in this case. And while I admit that is subjective, I believe it supports …

      Third, in a real “substantial similarity” consideration, I predict that were we to get to the extrinsic test, that a court (or jury) would find that the “ordinary, reasonable audience would find the works substantially similar in the total concept and feel of the works.” In other words, it looks too much like Seuss, which is in fact a standard in such cases. And as I have said, Templeton could have copied a LOT less to achieve the same result. The “star off/star on” machine is so iconic, for example, that it need not be copied so literally in order to communicate what is being conveyed in that panel. Hence, I maintain he took too much.

      Thanks for the conversation.
      DN

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