One Fish Two Fish, We Will Sue Fish: Seuss Lawyers Hop On Pop Art
from the oh-the-places-you-shall-not-go dept
A few weeks back, Ken “Popehat” White lit the famed Popehat Signal to seek pro bono legal help for the creators of a new Kickstarter project called “Oh The Places You’ll Boldly Go” — which was a parody mashup of Dr. Seuss and Star Trek.
As White wrote at the time, this seemed like a clear case of a big corporate bully — Dr. Seuss Enterprises — bullying a small group of artists having some fun, creating a parody that was almost certainly protected by fair use.
I believe this project is protected by Fair Use. Under the first relevant factor, it’s “transformative,” in that it adds a new message or meaning to Dr. Seuss’s work. It doesn’t merely offer a Star Trek episode in Dr. Seuss style; rather, it uses the style to comment on and contrast the Stark Trek and Seuss sensibilities and styles. With respect to the “substantiality” factor, the parody only uses Seuss’s recognizable and oft-parodied style; it does not copy actual art or story lines. With respect to the last factor, the work doesn’t harm the market for Seuss’s work. In other words, people won’t buy less Seuss because they bought this parody.
Either way, the Seuss people issued a takedown to Kickstarter that killed the crowdfunding campaign. The creators of the parody did get legal representation, and responded to Dr. Seuss Enterprises threatening counterclaims, and then also filed a counternotice with Kickstarter to get the campaign reinstated. Dr. Seuss Enterprises, rather than considering what thuggish bullies they might look like, decided to go ahead and sue last week, which they needed to do to keep Kickstarter from reinstating the project. You can read the whole ridiculous complaint yourself, if you’d like.
The lawsuit is claiming both copyright and trademark infringement (of course) along with unfair competition. The complaint includes a number of examples of what it calls the parody’s “slavish copying” apparently not caring that that’s kind of the point of a parody:
Somewhat ridiculously, the lawsuit is even using the fact that the parody creators admitted in the required “risks & challenges” section of their Kickstarter campaign page that they may get sued as evidence that they knew this was infringing:
On its Kickstarter page, Defendants admit that their blatant and willful infringement presents ?Risks and challenges? to their project:
While we firmly believe that our parody, created with love and affection, fully falls within the boundary of fair use, there may be some people who believe that this might be in violation of their intellectual property rights. And we may have to spend time and money proving it to people in black robes. And we may even lose that.
Except, of course, if you actually read that, they don’t admit that at all. They admit that some thuggish idiotic bullies who think copyright gives them more rights than it does may force them to waste time and money in court to prove fair use. And they were totally right about that.
Of course, this is not new territory for Dr. Seuss Enterprises. A few years back we had another story about it legally threatening another parody, which mocked how frequently “Oh The Places You’ll Go” is read at graduations at a time when graduates were having more and more difficulty finding jobs.
Many people love Dr. Seuess books. And it’s not like they’re going out of style or hurting for cash these days. Decades after Theodore Geisel’s death, Dr. Seuss books still absolutely and totally dominate the charts for children’s book sales. I’ll admit that my kids have a few on their bookshelf, but as long as Dr. Seuss Enterprises continues this kind of ridiculous bullying of perfectly reasonable parodies, I will never buy another Dr. Seuss book and recommend others do the same. Nothing good comes from rewarding giant enterprises that seek to stifle creative expression.