Star Trek writer ‘aped’ author’s work, says Dr Seuss estate

Comic book “Oh, The Places You’ll Boldly Go!” has “aped the purpose” of late children’s author and illustrator Theodor Seuss Geise’s work and is not protected by the fair use doctrine, according to his estate.

The contentions form part of a brief submitted by Dr Seuss Enterprises to the US Court of Appeals for the Ninth Circuit on Monday, August 5, as the estate seeks to revive its infringement suit.

Back in 2016, the estate sued Connecticut-based comic company ComicMix, its co-founder Glenn Hauman, David Gerrold (the co-author of the comic) and Ty Templeton (the comic’s illustrator) for copyright and trademark infringement, and unfair competition.

Gerrold is known for writing the Star Trek episode “The Trouble With Tribbles”.

Dr Seuss’ estate alleged that the comic “purports to be an amalgamation of the Dr Seuss works and certain characters, imagery, and other elements from Star Trek” and was copied from the Dr Seuss works, primarily “Oh the Places You’ll Go!” (“Go!”).

The estate also claimed that the comic misappropriated key protected elements of the books “Horton Hears a Who”, “How the Grinch Stole Christmas!”, “The Lorax”, and “The Sneetches and Other Stories”.

In June 2017, a judge at the US District Court for the Southern District of California partially granted ComicMix’s motion to dismiss the dispute, dismissing the trademark element of the complaint under the doctrine of nominative fair use, with leave to amend, but allowing the copyright argument.

The estate then filed an amended complaint, which ComicMix again attempted to dismiss. But, later that same year, the judge rejected the motion for dismissal of the clash.

Fair use factors

The dismissal of Dr Seuss Enterprises’s trademark claims came in May 2018, after ComicMix submitted a motion for partial judgment on the pleading, seeking dismissal of the estate’s trademark claims on First Amendment grounds.

Subsequently, both parties filed cross-motions for summary judgment on the copyright claims.

In March 2019, the court granted ComicMix’s summary judgment motion, finding that the comic book company’s use of the Dr Seuss works in  “Oh, The Places You’ll Boldly Go!” was fair use.

Unsurprisingly, the estate appealed against the decision soon after and, earlier this week, submitted its opening brief.

“The undisputed record shows that each of the four statutory fair use factors favours Dr Seuss Enterprises,” said the brief.

On the first factor, the nature and character of the use, the court repeated its ruling that “Oh, The Places You’ll Boldly Go!” was “highly transformative” despite its non-parodic and commercial nature, according to the estate.

It added: “‘Oh, The Places You’ll Boldly Go!’ does not parody or comment on, criticise, or teach about ‘Go!’ or Dr Seuss. Defendants added no new purpose to the many Dr Seuss drawings they meticulously copied. They merely aped the purpose of ‘Go!’ entertaining the readers (mostly graduates starting out in the world) with an uplifting story.”

According to the brief, the second factor, the nature of the copyrighted work, favours the estate, as Dr Seuss’ “unique creative works are entitled to maximum copyright protection”.

“So does the third factor, the amount and substantiality of what was taken, because defendants copied extensively from Dr Seuss and took many imaginative drawings that were central to his books,” it added.

Finally, the fourth factor (harm to Dr Seuss’s potential markets) also weighs decisively against fair use, according to the estate.

It added: “The district court erred in shifting the burden on this factor to [Dr Suess Enterprises]; fair use is an affirmative defence, and its proponent must show absence of market harm even if the challenged use is transformative.

“Defendants failed to show there was no market harm, so the fourth factor favours Dr Seuss Enterprises as a matter of law.”

In the 81-page brief, the estate also argued that the court had erred in dismissing its trademark claim and that this decision should be vacated and remanded for trial.

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