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Dr. Seuss Enterprises v. ComixMix

By Barry Werbin

There was a significant S.D. Cal. March 12th decision in the long running Dr. Seuss Enterprises v. ComixMix case, which granted ComixMix summary judgment on the copyright infringement claim, finding that the defendant's mashup of content from various Seuss works (including Oh, the Places You'll Go! ("Go!")) and Star Trek episodes, entitled Oh, the Places You'll Boldly Go! ("Boldly"), was entitled to a fair use defense, despite it not being a parody. The court found that Go! was highly transformative and that Seuss Enterprises failed to establish a non-hypothetical likelihood of market harm.

On transformative use, the court found that "the copied elements are always interspersed with original writing and illustrations that transform Go!'s pages into repurposed, Star-Trek-centric ones.... Defendants did not copy verbatim text from Go! in writing Boldly, nor did they replicate entire illustrations from Go! Although Defendants certainly borrowed from Go!--at times liberally--the elements borrowed were always adapted or transformed."

The court also found that Boldly had a different "intrinsic purpose and function" than that of Go!, " i.e., "providing an illustrated book, with the same uplifting message that would appeal to graduating high school and college seniors.... While Boldly may be an illustrated book with an uplifting message (something over which Plaintiff cannot exercise a monopoly), it is one tailored to fans of Star Trek's Original Series."

On the third fair use factor, the court held that "portions of the old work are incorporated into the new work but emerge imbued with a different character" and that "Defendants took no more from the Copyrighted Works than was necessary for Defendants' purposes, i.e., a 'mash-up' of Go! and Star Trek."

Finally, on the fourth market harm factor, the court found that Seuss Enterprises "failed to sustain its burden to demonstrate by a preponderance of the evidence that Boldly is likely substantially to harm the market for Go! or licensed derivatives of Go!.... [The] potential harm to [Plaintiff]'s market remains hypothetical."


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