C&D Squashes Seuss-Style Satire: Where Did The Idea/Expression Dichotomy Go?

from the blue-eggs-and-spam dept

One aspect of fair use that often confuses people is the distinction between parody (which is well-established as fair use in many circumstances) and satire (which is not). The basic distinction is that a parody that makes use of a copyrighted work is doing so to comment on that work, while satire that makes use of a copyrighted work is doing so to comment on something else. The legal reasoning is that in the former situation, use of the work is necessary because it is intrinsic to the commentary, but in the latter situation it is unnecessary because the same commentary could be made in another way.

Unfortunately, the distinction is not always so clear. Illustrator Danny Hellman recently discovered this after completing a series of illustrations in the style of Dr. Seuss for a book about declining job prospects for recent graduates, itself written in the Seussian style (and presumably inspired by the tradition of reciting Seuss’ Oh, The Places You’ll Go! at graduation ceremonies).

A few months into the project, (after I’d turned in about half of the book’s 80 or so illos) the publisher sent promo materials for the book out to retailers. Apparently, some wicked, Grinch-like person felt compelled to pass these materials along to attorneys who work for the Ted Geisel [Dr. Seuss] estate, at which point this flock of legal carrion birds descended on my publisher much as the Onceler clan does on a newly-discovered forest of virgin Truffula trees.

Okay, enough of the Seuss metaphors. Suffice to say that my publisher was hit with a Cease & Desist letter, and the project was killed, in spite of our well-established First Amendment right to commit parody.

While I’m sure that the estate would have sent a C&D no matter what, in this case the parody defence is likely not as strong as Hellman assumes, because the book was not commenting on Seuss and his work, but rather on an unrelated topic, making it more satire than parody. There’s also the possibility that trademarks are involved, which would be a different story, but without actually seeing the C&D it’s hard to say. Assuming, as Hellman suggests, copyright is indeed the core issue, this situation is comes down to an even more fundamental question: can an artist’s “style” be protected by copyright? Let’s take a look at one of the images in question:

Yes, it is distinctly Seussian, but it does not replicate or make use of any of Seuss’ actual work. This is an example of the failure of the idea/expression dichotomy that is supposed to be central to copyright law. In theory, ideas are not covered by copyright, only the fixed expression of those ideas, but while some argue that the distinction is clear and obvious, the fact is that’s rarely the case. An artist’s signature style is, in one sense, a part of the specific expression, but in another sense it is a collection of artistic ideas that dictate expression. If style can be protected, it creates a problematic double standard: could someone, for example, get away with reproducing a Seuss book in full using a different style of art and writing? Unlikely. But if they also can’t tell a different story using the Seussian style then… suddenly there is no “idea” side of the dichotomy at all.

The real issue is that it’s highly subjective, creating situations where judges must play art critic to determine if something is infringing. So a book like this can easily be killed by a C&D, since the publisher isn’t going to risk a lawsuit when they have no clear standard telling them if the work is infringing. That creates a massive chilling effect on art, and gives rightsholders too much power to squash anything they don’t like, with or without a firm legal basis.

Lack of clarity on key concepts like parody/satire and idea/expression is one of the biggest problems with copyright law today. When artists have no way of knowing whether something is infringing, it limits their creativity, and everyone is worse off. A firm, clear definition of the idea/expression dichotomy (and one that errs on the idea side, as was always the intent, since fair use is supposed to be what stops copyright from violating freedom of speech) would go a long way towards fixing a broken law.

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Comments on “C&D Squashes Seuss-Style Satire: Where Did The Idea/Expression Dichotomy Go?”

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83 Comments
Hulser (profile) says:

Re: This case should even be a case

Copyright shouldn’t extend past the authors death

I actually think that the copyright term should ignore completely whether the artist is alive or dead. The determination of how long the copyright term is should balance how much of an incentive it is for the artist versus the overall benefit to the public. How does whether the artist is alive logically play into this calculation?

A Dan (profile) says:

Re: Re: Re: This case should even be a case

If copyright were limited to the life of the author, then the author would have declining incentives as he/she grew older. An 80-year-old would likely have no publisher willing to buy his book, since they would have far less time to exploit it (prior to public domain) than a 30-year-old author’s book. This is avoided with fixed lengths. It also removes the incentive to kill authors so you can use their work.

Anonymous Coward says:

Re: Re: Re:3 This case should even be a case

Keep in mind that some big studio could possibly order a hitman to kill a popular author (for instance J.K. Rowling or Stephenie Meyer) to put their work in the public domain. The studio could then make movies off the work without paying for it, which wouldn’t be completely unthinkable for big franchises like Harry Potter or Twilight.

Franklin G Ryzzo (profile) says:

Re: Re: Re: This case should even be a case

I have to agree with Hulser… Copyright should be based on a specific timeframe and the creator’s living/dead status should be irrelevant. If I create the greatest work of art known to mankind today and drop dead tomorrow, there is no reason that my family shouldn’t profit from that creation for a reasonable period of time, just as I would have provided for them off the work if I had remained among the living.

GMacGuffin says:

Seuss has been down this road before ...

Almost this exact case was used for the “fair use” discussions in a copyright survey course I took maybe 12 years ago.

Seuss & Co. got themselves a court ruling that said emulating the style of Seuss without parody of an actual work was infringement. So it was not likely just a C&D, but a C&D with case citations to the time long ago that they won on this issue. Hence the quick fold by the publisher.

Not an Electronic Rodent says:

Re: Seuss has been down this road before ...

Seuss & Co. got themselves a court ruling that said emulating the style of Seuss without parody of an actual work was infringement

Which is just insane from a “copyright is there to encourage creation” viewpoint. To copyright a STYLE of drawing would be like copyrighting the Blues “style” of music.

Anonymous Coward says:

Re: Seuss has been down this road before ...

“Seuss & Co. got themselves a court ruling that said emulating the style of Seuss without parody of an actual work was infringement. So it was not likely just a C&D, but a C&D with case citations to the time long ago that they won on this issue. Hence the quick fold by the publisher.”

Link please.

Fin says:

Grrrrrr

Storys like this are disheartening. I’m currently working on a Windows Phone 7 game, totally non intrusive ad supported and free and a pay whatever you think its worth option plugged in (as thats how i view media now) and its based on the retro world, with blocks for characters. It was inspired by Adventure from Atari.

The original build was going to clone the game, but apparently atari hate that and issue legal proceedings like most, even though they don’t have a version on this platform. So i have rewritten everything. But as its the retro style the graphics are all blocks, so does the fact i have a castle made of blocks (Adventure / Atari esq but def. not the same) mean i am on shakey ground.

Even though all art and sound is original, the story has been re-written so its nothing like advenutre and the adventurer, castles, keys, swords and other evil monster genre predates video games by hundreds of years, i am still hesitant…which is just wrong

Anonymous Coward says:

Re: Grrrrrr

And this is a prime example of why copyright is messed up. Thanks to greedy corporations sitting on their 30-year-old copyrights (which they aren’t even using anymore, but continue to sue into the ground anyone who dares to “infringe”), the world has just lost what could have been an awesome game.

Does Atari (or whoever owns the rights now) have any plans to market something based on Adventure or other classic games in the near future? If not, then cloning the game does not hurt them in any way, so they have no reason to go after you. There’s no excuse.

Ninja (profile) says:

And because it’s a satire, not a parody it’s ok to sue. I know you didn’t say that Mike but this is exactly the type of thing that makes me think a good lawyer is a dead lawyer.

Put aside the fact that the author is dead and some lazy inheritors are the ones that are actually gonna benefit, we are talking about a brand new work that uses parts of an existing works but it’s being killed because of imaginary rights granted by Governments. If you consider such rights were first aimed at PROMOTING CREATIVITY AND ACTING AS INCENTIVE FOR FURTHER CREATIONS then it seems to me that these imaginary rights already failed miserably and should be either reviewed or abolished.

But never mind me.

Leigh Beadon (profile) says:

Re: Re: Re:

I think the reason satire is not allowed is because it would be interpreted by many people as an endorsement of the satirist’s message by the original author.

The reason is more to do with free speech, and the fact that copying is “necessary” for one but not the other.

So for example, if you want to criticize Dr. Seuss’ litigious estate by parodying “How The Grinch Stole Christmas”, your use of Seuss’ work is intrinsic to your commentary – thus, the courts reason, to deny you the ability to use Seuss’ work for a parody would be to deny you your protected free speech. So parody becomes a form of fair use – since fair use is (in theory) how you “fix” situations where copyright law infringes on free speech.

If, on the other hand, you want to criticize someone else, let’s say the RIAA, by writing a version of “How The Grinch Stole Christmas”, then it’s no longer a parody because (at least legally speaking) a parody exists to mock/criticize/comment on the thing it is parodying. The use of the Seuss story is not intrinsic to your criticism of the RIAA. Thus, the courts reason, that denying you the right to use Seuss’ work does not actually limit your free speech – and thus they grant no fair use exception to copyright law in that situation.

hegemon13 says:

Re: Re:

He’s not talking about copying, replicating, or counterfeiting, and you know it. He asked whether he could do his own work in the same style.

If the answer is no, our copyright system is even more broken than I imagined. Where, exactly, can we draw the line? Is writing gruesome horror using pop, straightforward language with everyman characters infringing on Stephen King?

Anonymous Coward says:

Re: Re:

Not really. For the reasons Leigh explained the C&D appears to have no actual legal standing. He said that his publisher killed the project after getting the C&D letter which is just that A LETTER – a bunch of wind from an attorney threatening to take legal action if demands aren’t met. And apparently his publisher decided he didn’t want to fight it. Had he stood firm and it gone to court it might have actually had been a demonstration of the law but it was just a really use of a scare tactic.

Anonymous Coward says:

According to Wikipedia...

“A parody (play /ˈp?rədi/; also called pastiche, spoof, send-up or lampoon), in current use, is an imitative work created to mock, comment on, or trivialise an original work, its subject, author, style, or some other target, by means of humorous, satiric or ironic imitation.”

http://en.wikipedia.org/wiki/Parody

Parody is NOT limited to the original work. However I do agree with the rest of his analysis of the case.

Regardless, lawyers send threatening C&D letters all the time that aren’t based on any solid legal standing because 1. it doesn’t cost anything to do it and 2. often times the scare tactic works because people don’t know their rights or simply want to avoid ANY kind of legal entanglement.

Leigh Beadon (profile) says:

Re: According to Wikipedia...

Two things:

1) The dictionary definition is not the same as the legal definition
2) I still think you’re reading that wrong – the “some other target” part means a parody can be of something other than a work/style/author, however the target (whatever it may be) is still what’s being imitated

Anonymous Coward says:

Re: Re: According to Wikipedia...

Whether or not the legal definition matches it appears that the fair use law is written such that it has to be a parody of the original work…

The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: ?quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author?s observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.?

http://www.copyright.gov/fls/fl102.html

so it appears that the end result as it applies to copyright law is the same regardless.

Anonymous Coward says:

Re: Re: Re:2 According to Wikipedia...

My initial comment was that from looking at their definition it didn’t appear to be as you defined as you had. But when I went looking for the text of the law so I could see if they included a legal definition for it and I found that which means my original point was moot with the law written that way.

Anonymous Coward says:

I think without context, it is hard to judge anything from just a single image.

Was there words?

I am sam, sam I am. I am a hobo, that is no hoho.

Parody is a nice thing, but generally you have to be making a parody of the original, and not just using the original to make points.

let me quote:

a series of illustrations in the style of Dr. Seuss for a book about declining job prospects for recent graduates

Clearly, this isn’t to parody a Seuss book, but rather to make political points. It’s not a parody by any term I can think of.

Anonymous Coward says:

Re: Re:

The main focus of the article though was even if it doesn’t fit the legal definition of the use of parody described in the fair use law, copying a style does not constitute infringement because the style is an IDEA and ideas are not covered under copyright. IF he used a character or a specific line or something else directly from one of the books then yes it would be infringement. However if he merely uses illustrations that mimic the illustrations and use phrasing that mimics the literary style then those are fine.

TtfnJohn (profile) says:

Re: Re: Re:

I read the post as saying SATIRE isn’t protected while parody is. In other words you can’t use Dr Seuss like characters in a satire even if the characters aren’t borrowed from Dr Seuss and that the illustrations clearly aren’t his but someone else’s borrowing the style.

And most satirical work is heavily political in one form or another.

I’d have to see more of the work to but, on the surface, it’s sad that it came to an end with a C&D request/order.

Leigh Beadon (profile) says:

Re: Re:

Parody is a nice thing, but generally you have to be making a parody of the original, and not just using the original to make points. … Clearly, this isn’t to parody a Seuss book, but rather to make political points. It’s not a parody by any term I can think of.

Wow that’s such an important point I wish I’d dedicated the whole first half of the post to making it.

Oh wait…

Leigh Beadon (profile) says:

Re: Re: Re: Re:

I looked at it in seconds and saw satire and not parody

Yeah – like I said in the post. Several times. I think you better read it again TAM. You’re in so much of a rush to find something to criticize me on that you just make yourself look like a jackass.

Here, let me help you, since you’re clearly quite slow:

in this case the parody defence is likely not as strong as Hellman assumes, because the book was not commenting on Seuss and his work, but rather on an unrelated topic, making it more satire than parody.

First paragraph after the quote (that’s the indented thing in italics, in case you aren’t clear on that either)

Anonymous Coward says:

Re: Re: Re:2 Re:

First off, I don’t know who TAM is. So trying to guess an anonymous is a failure. Don’t you feel like a jackass now?

“First paragraph after the quote (that’s the indented thing in italics, in case you aren’t clear on that either)”

Yes, yet you rattle on like there is some other justification for this stuff, and there just is not. One look at the picture tells me what “universe” the characters come from, and I feel right away that it might be official Seuss material. That’s where it ends, because there is enough potential confusion.

You just don’t get it, do you? It’s satire, not parody, and it’s misappropriation of the character set used for MANY Seuss books. It’s not something you can win either way.

Why make a big long post about something that is quite so obviously against the law?

Leigh Beadon (profile) says:

Re: Re: Re:4 Re:

Marcus why are you trying to show something for a moron in a hurry he is obviously in a hurry to flame you so he still didn’t see the part where you explained the difference of parody and satire.

I guess I’m just trying to underline his idiocy but you’re right – I don’t know why I bother. Nobody could do a better job at making him look stupid than he does himself.

Anonymous Coward says:

Re: Re: Re:3 Re:

Forget the parody/satire question for a minute because in this case THAT DOESN’T MATTER. Answer this question. From what SPECIFIC work or works the “Seuss universe” do the characters come? The answer: NONE. The only reason the satire/parody question is even mentioned is that the author mistakenly thought it was fair use when it wasn’t. But it still isn’t infringement under copyright law.

Gwiz (profile) says:

Oh, The People You Will Sue

Oh, The People You Will Sue

Congratulations!
From here you’ll go far.
After trials and tribulations
You’ve finally passed the Bar.

You spent years in Law School
Listening to every Law Scholar
You are not anyone’s fool
You are now an IP Lawyer

Everything is new, it’s a brand new day
Then reality hits and you start to moan
You have to figure out a way
To repay all those student loans

You fire up your ‘puter and look around
You see gatekeepers who need savin’
Against the evil pirates who abound
And think to yourself. I’ll be the next Righthaven!

Oh, The People You Will Sue

As the plan forms in your mind
You’ll sue mothers and printers
You’ll sue anyone you can find
You’ll leave the net in splinters

You’ll sue anyone who utters “Fair Use!”
and companies who use Safe Harbors
’cause in your mind that’s all just abuse
And that’s just for starters

Oh, The People You Will Sue

With patents and trademark abuses
You’ll sue anyone who innovates
Or dares to produce something with uses
And every single company who creates

You’ll file class action suits
For artists against labels, it’s true
You’ll work hard on these pursuits
Because no one gets the money, well, except you.

You’ve become an IP Lawyer
You knew what you were doing
There’s infringers out there
So…get suing!

Anonymous Coward says:

more suess-like

so basically, if I’m understanding this correctly, what the artist needs to do in this example is to use actual Suess characters (putting them in the unemployement line or causing their unemployement as an example) to make a commentary, i.e. parody and a statement on Dr. Suess’s heirs.

That could be done now. Just include the C&D letter with the book and change the characters…

Anonymous Coward says:

Re: Re: Re: more suess-like

Again, who the hell is TAM?

Marcus, you need to grow up child. You are a skinny ass white boy with few real talents except the ability to bitch. You have proven you have no talent, no skill for market, and no abilities to produce logic beyond eating the yule logs that Mike dumps on your face and recycle them.

So, if you want to play games, just remember: I am posting as an anonymous poster, and that is all you need to know. Trying to guess who I am (and failing I might add) sort of proves the point. You are a hopeless tard, and a narrow minded technology bigot on top of it.

Leigh Beadon (profile) says:

Re: Re: Re:4 more suess-like

I think it’s just another great indication that you want to be what you are not, that’s all.

Er… what?

Thanks for ignoring the rest of my comments. I am glad you accept your position as Mike’s bidet.

The vast majority of your comments say a lot more about you than they do about me. No need to respond to them.

Gwiz (profile) says:

Re: Re: Re:2 more suess-like

Again, who the hell is TAM?

Someone who used to comment with the user name The Anti-Mike, but now seems to only comment as an Anonymous Coward.

http://www.techdirt.com/user/tam

Marcus, you need to grow up child. You are a skinny ass white boy with few real talents except the ability to bitch.

I am not Marcus, but I do have to say that is about the most childish way to tell someone to stop being childish. Just sayin’.

Anonymous Coward says:

Re: Re: Re:3 more suess-like

Hey, once Marcus stoops, it’s pretty much fair game to kick him in the ass. He’s a Mike wannabe with a snarky, superior attitude, and the general way of dealing with that sort of person is to give them a swift kick in the jewels and tell them to get lost. Hard to do online, but hey.

Marcus wants to think he knows something that he doesn’t. The more he talks, the more he proves he is full of it.

Anonymous Coward says:

the Ted Geisel [Dr. Seuss] estate

Forget the whole parody/satire/fair use thing, this is what makes me mad. People thinking that they’re entitled to profit from the works of other people, ancestors or not. People thinking they can sit on copyrights they aren’t using on the market. But that’s exactly what our messed-up laws allow to happen, by making copyrights transferable, unconditional, and valid for 70 years after the author is dead and can’t exploit it any more.

I think copyright should be subject to a “use it or lose it” rule like trademarks. Copyright is supposed to be an incentive to create. Fine then, if you want your copyright, you have to actively use it. No, enforcing is not the same as using.

Anonymous Coward says:

Re: Re:

I think copyright should be subject to a “use it or lose it”

This reminds me of a suggestion I made in a comment on a different article a while back on patents. I think we need to apply the concept of adverse possession from physical property law to patents where someone who wants to produce a product but can’t because someone else is just sitting on a patent without producing anything with it can challenge the ownership of the patent and be granted ownership of it. Not sure whether I agree with the concept being applied to copyright but it would certainly be an interesting concept to explore.

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