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9th Cir. Finds No Fair Use In Dr. Seuss/Star Trek "Mashup"
In Dr. Seuss Enterprises L.P. v. ComicMix LLC, 983 F.3d 443 (2020), a unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit held in December that ComicMix's illustrated book combining elements of several Dr. Seuss children's books with characters, themes and other features of the popular sci-fi series Star Trek was not a fair use of the Seuss material from which it had admittedly been "slavishly" copied. The Ninth Circuit reversed and remanded the district court's determination of fair use and grant of summary judgment to ComicMix. (See our May 24, 2019 article in the New York Law Journal, "'Mash-Up' of Dr. Seuss and Star Trek Held Fair Use," discussing the district court's decision.) The Ninth Circuit found that all four fair use factors set forth in §107 of the Copyright Act favored Dr. Seuss Enterprises. In particular, the Ninth Circuit found that ComicMix's use was not transformative and that it would cause significant market harm to the plaintiff.
Dr. Seuss Enterprises L.P. is the successor to all rights in works created by the late Theodor S. Geisel, popularly known by his pseudonym "Dr. Seuss." One of his most popular illustrated books, Oh, the Places You'll Go! (Go!), depicts a young man on the verge of graduation, or about to embark on adventures or other new experiences. Guided by the narrator, the young man encounters both successes and obstacles along with way, but persists and ultimately succeeds ("98 and 3/4 percent guaranteed"). The imaginary journey ends, along with the book, as the narrator encourages the young man to commence his "actual" journey ("Kid You'll Move Mountains … So, Get On Your Way").
The story is told in witty rhymes and with fanciful illustrations for which Dr. Seuss has become widely known and admired. Since publication, Go! has been the number one book on The New York Times Best Sellers list every year during graduation season. Elements of two other Dr. Seuss books (How the Grinch Stole Christmas and The Sneetches and Other Stories) were also used by ComicMix, but Go! was its primary source. The Ninth Circuit sometimes used the defined term "Go!" to refer to all three sources, as we do below.
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