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.

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  • icon
    aerinai (profile), 15 Nov 2016 @ 7:25am

    Just wait them out...

    Don't worry guys, you can create this parody in 2061 once All of Dr. Seuss is in public domain. Just wait it out!

    /s

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 15 Nov 2016 @ 8:50am

    Like Andy Warhol once said "Art is anything you can get away with."

    He'd be rolling in his grave right now if he knew just how little we're able to get away with these days.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 15 Nov 2016 @ 9:09am

    I don't get how this is a parody of Seuess and not a satire or just a mash-up. How is this distinguishable from Dr. Seuss Enters., LP v. Penguin Books?

    reply to this | link to this | view in chronology ]

    • icon
      Leigh Beadon (profile), 15 Nov 2016 @ 9:28am

      Re:

      Well, in this case the creator argues that their work is a sort of two-directional commentary highlighting the dissonance between the two styles - and as such is a commentary on both Seuss and Star Trek.

      That said, I think you're right: it's very hard to distinguish this from Seuss v. Penguin. But that underlines how absurd the limitations of fair use and the obsession with "parody" is, and just how completely subjective that determination is. Besides, even setting aside the parody question, both this and "The Cat NOT In The Hat" should, under any reasonable interpretation of fair use, have been protected anyway - they are highly transformative, there's no reason to believe they'd have *any* impact on the market for the original, and there's hardly a "substantial" portion copied since almost nothing has been directly copied at all - just a style. Add to this that it's about as clear as mud just how far copyright coverage of a "style" goes (and extremely debatable whether such coverage should exist at all).

      Sadly, that is not the attitude of many courts. Those courts are incorrect, and are putting copyright into direct conflict with freedom of speech by not broadly interpreting fair use as they should be.

      reply to this | link to this | view in chronology ]

  • identicon
    Baron von Robber, 15 Nov 2016 @ 9:11am

    I do not like copyright maximalists and spam.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 15 Nov 2016 @ 5:43pm

      Re:

      You might want to watch what you say.

      Not because you'd get sued for it, but the character who said the phrase your comment is based on ended up liking it.

      reply to this | link to this | view in chronology ]

  • identicon
    TripMN, 15 Nov 2016 @ 9:11am

    Unfair Competition

    They are crying unfair competition mainly because none of them have the skills or creativity to create anything new with the Dr. Seuss IP since Teddy has gone.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 15 Nov 2016 @ 9:55am

      Re: Unfair Competition

      More like, when you business is publishing, which means making money off of the works of others, it is unfair when those others bypass the publishers and make the money for themselves. If they do not use the publishers services, how is the publisher to make money?

      reply to this | link to this | view in chronology ]

  • icon
    orbitalinsertion (profile), 15 Nov 2016 @ 9:38am

    I will never buy another Dr. Seuss book and recommend others do the same.

    There are so many copies already extant that i think there may be a market for a First Sale Doctrine site to connect those who want books but don't wish to enrich awful rightsholders / IP bullies like this with those who have copies and don't need them, and to publicly thumb a nose at the trolls. With a special section with stats just for Seuss, Tolkein, etc.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 15 Nov 2016 @ 9:46am

    "they are highly transformative, there's no reason to believe they'd have *any* impact on the market for the original,"

    In fact, any impact they have would almost certainly be positive. A good example of this is Japanese doujin - there's a lot of fan made works that are actually sold at conventions based on someone else's original work. Case in point: the Touhou series of games, which has literally ten times as many fan-works using the original characters as there are actual games in the series.

    These don't 'steal' the market from the original creator, but rather they have aided in keeping the fanbase alive and driving demand for the official games.

    At worst, this fanmade work will not affect sales of Dr. Seuss since this is aimed at adults whereas the official books are a completely different market (children's books). At best however, if this were popular and got the blessing of the people looking after Dr. Seuss's works, it could actually fuel adults' nostalgia and encourage sales of Dr. Seuss books.

    reply to this | link to this | view in chronology ]

  • identicon
    Daniel Audy, 15 Nov 2016 @ 9:48am

    I was initially pretty strongly on the side of the Trek project but looking at those samples I'm finding myself torn. That isn't just using the style but copying the individual compositions in great detail and adding the Star Trek stuff in. Particularly for the second sample, it looks like they just used tracing paper for the tree and the background down to copying the exact number and layout of twigs on the tree and the number and shape of the background hills, neither of which feature is distinctly memorable enough to be part of the Seussian style. The utter lack of originality in the composition of those pieces of art is going to be a bloody high barrier to convince a judge or jury that they are making creative choices when to me, someone who was inclined to their side in the first place, 'slavishly copying' seems like a fairly honest description.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 15 Nov 2016 @ 9:58am

      Re:

      Can you say that about Weird Al music. He took the same song and mainly changed the lyrics. I would even say it is exactly the same thing except one is in music and the other is digital artwork.

      reply to this | link to this | view in chronology ]

      • icon
        Oninoshiko (profile), 15 Nov 2016 @ 12:02pm

        You can't really compare this to Weird Al

        In fairness, you can't compare this to Weird Al. As I understand it, Weird Al ALWAYS gets permission first.

        reply to this | link to this | view in chronology ]

        • icon
          Leigh Beadon (profile), 15 Nov 2016 @ 12:19pm

          Re: You can't really compare this to Weird Al

          That's not entirely true.

          Weird Al always seeks permission from the artist, usually after having recorded the songs. In cases where he does not get it, he often releases the songs for free online anyway, and simply foregoes "commercial" release on his albums - and seems to base this on a personal decision about whether or not he wants to respect the artist's wishes and reasons. But I'm sure legal might enters into it: he's stated that he doesn't want to anger anyone, but also that he's not interested in testing any legal grey areas (and fair use is one big grey area).

          What he doesn't do, to my knowledge, is seek or obtain a license from the artist, because he likely doesn't need one as someone making parodies. In fact though the term permission is frequently used, given the fact that he's made free releases after being denied it and many of these agreements appear to be somewhat informal, I think it would be more accurate to say he seeks the "blessing" of the artists.

          reply to this | link to this | view in chronology ]

        • identicon
          alternatives(), 16 Nov 2016 @ 4:46am

          Re: You can't really compare this to Weird Al

          not always. There was a kerfuffle on a song where the artist had to step in and dopeslap the people she hired.

          reply to this | link to this | view in chronology ]

    • icon
      jupiterkansas (profile), 15 Nov 2016 @ 10:01am

      Re:

      Parody doesn't depend on the amount of creativity, and sometimes the tiniest change can be highly creative.
      https://lunaticadesnuda.blogspot.com/2008/08/many-incarnations-of-mona-lisa.html

      reply to this | link to this | view in chronology ]

    • icon
      Leigh Beadon (profile), 15 Nov 2016 @ 10:40am

      Re:

      That might sound fine in isolation. But you also have to consider the body of court rulings and successful threat letters and the like, and the impossible constraints they have placed on any sort of appropriation art or parody. Here you consider the combination of style and composition copying, even with different subject matter, to be over the line - but consider this:

      Using a different style and composition, but the same subject matter? Infringing (lawsuit, fair use defense dismissed immediately, cash settlement)

      Using the same composition and subject matter, but an entirely different style? Infringing (successful lawsuit) (additional example: settled out of court)

      Using the same style, but entirely different subject matter and composition? Infringing (successful cease-and-desist to publisher)

      And that's just a few examples from the visual arts. If we include literature, you've got books being banned for not even using the same content at all, just building on the same subject matter. If you head to music, you have an entirely new legal landscape shaped by different rulings (and believe it or not it's even more restrictive).

      Then add to all this the fact that the uncertainty itself further weakens fair use and stifles creativity, because it makes creators think twice about pursuing any idea that involves any form of appropriation or copying.

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 15 Nov 2016 @ 5:41pm

        Allow me to present a modest proposal to deal with the issue:

        Clearly the only possible fix is to keep creative types in complete isolation, such that there is no possible way they could infringe on anything because they're making everything from scratch and based entirely on their own ideas.

        And when they get sued anyway, because only one person is allowed to create and own any given idea and the isolated people should have known that they were creating an infringing work, that will just be further evidence that infringement is such a problem it can even happen when there's absolutely no link before or during creation between the works being made, indicating that all this pussy-footing about with 'fines large enough to buy houses with' isn't cutting it, and we need to go straight to execution for so much as accusations of infringement.

        Then and only then will true creativity really be able to bloom, with nothing repeated, inspired or influenced by previous works for fear of death.

        reply to this | link to this | view in chronology ]

  • identicon
    David, 15 Nov 2016 @ 9:52am

    See?

    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.

    So you agree that Dr Seuss Enterprises is losing sales that it might have maintained if not for those pesky parodists raising their pens.

    Dr Seuss certainly would not have written his children books had he expected that others tried entertaining children and other people in manners reminding them of Dr Seuss books. If it wasn't for the thought of lawyers steamrolling over humorists in his name, he'd never have come up with such works.

    Would you like them on the bench? Would you like them Dutch or French? Would you like them on appeal? Would you wish for a plea deal?

    I don't like lawyers on the bench. I don't like them Dutch or French. I don't like them on appeal. Guess where to stick your plea deal.

    reply to this | link to this | view in chronology ]

  • icon
    Ryunosuke (profile), 15 Nov 2016 @ 10:08am

    meanwhile, they did ABSOLUTELY NOTHING to stop the ... shit that mike meyers was in, or subsequent movies.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 15 Nov 2016 @ 10:26am

    You're a Mean One, Dr. Sues (not a typo) lyrics

    You're a mean one, Dr. Sues
    You really are a heel
    You're as cuddly as a cactus
    You're as charming as an eel
    Dr. Sues!
    You're a bad banana
    With a greasy black peel!

    You're a monster, Dr. Sues!
    Your heart's an empty hole
    Your brain is full of spiders
    You've got garlic in your soul
    Dr. Sues!
    I wouldn't touch you
    With a thirty-nine-and-a-half foot pole!

    You're a vile one, Dr. Sues!
    You have termites in your smile
    You have all the tender sweetness
    Of a seasick crocodile
    Dr. Sues!
    Given the choice between the two of you
    I'd take the seasick crocodile!

    You're a foul one, Dr. Sues!
    You're a nasty, wasty skunk!
    Your heart is full of unwashed socks
    Your soul is full of gunk
    Dr. Sues!
    The three words that best describe you
    Are as follows, and I quote
    "Stink, stank, stunk!"

    You're a rotter, Dr. Sues!
    You're the king of sinful sots!
    Your heart's a dead tomato
    Splotched with moldy, purple spots
    Dr. Sues!
    Your soul is an apalling dump-heap
    Overflowing with the most disgraceful
    Assortment of deplorable rubbish imaginable
    Mangled-up in tangled-up knots!

    You nauseate me, Dr. Sues!
    With a nauseous super naus!
    You're a crooked jerky jockey
    And you drive a crooked hoss
    Dr. Sues!
    You're a three-decker sauerkraut
    And toadstool sandwich
    With arsenic sauce!

    reply to this | link to this | view in chronology ]

  • icon
    Stan (profile), 15 Nov 2016 @ 12:39pm

    I wonder...

    I wonder if the first artist said to the second artist:
    "Do you think they will sueus?"

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 15 Nov 2016 @ 1:47pm

    "big corporate bully -- Dr. Seuss Enterprises"

    LOL

    and coming from the clown that's shilling for Google and Facebook on the very same page. Too funny.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 15 Nov 2016 @ 5:42pm

      Re:

      How's that Keith Lipscomb fund coming along, bro?

      reply to this | link to this | view in chronology ]

    • This comment has been flagged by the community. Click here to show it
      identicon
      Anonymous Coward, 15 Nov 2016 @ 6:00pm

      Re:

      Looks like this was censored. Hmm, you really shouldn't do that, should you?

      Original:

      "big corporate bully -- Dr. Seuss Enterprises"

      LOL

      and coming from the clown that's shilling for Google and Facebook on the very same page. Too funny.

      reply to this | link to this | view in chronology ]


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