The Cyberlaw Clinic filed an amicus curiae brief (.pdf) last week in the United States Court of Appeals for the Ninth Circuit in Dr. Seuss Enterprises v. ComicMix, on behalf of several individuals and non-profit organizations (including groups that advocate for freedom of expression and individual science fiction authors). The brief supports the creators of Oh, the Places You’ll Boldly Go! (“Boldly”), a Star Trek-inspired mash-up of several Dr. Seuss works, including Oh, the Places You’ll Go!, Horton Hears a Who!, and How the Grinch Stole Christmas! The case has implications for the scope of fair use protection for mash-ups and other works that incorporate original works.
The appeal arises from a copyright infringement action brought against the creators of Boldly by Dr. Seuss Enterprises, the current copyright holder of Dr. Seuss’s works. Last spring, a lower court granted ComicMix’s motion for summary judgment, finding that Boldly constituted fair use. In applying factors one and four of the fair use test, the court found that the purpose and character of Boldly’s use of Dr. Seuss works was transformative and that it was thus not presumed to infringe on the market for Dr. Seuss works.
Amici have an interest in advocating for the interests of creators and promoting freedom of expression. Based on decades of experience, Amici urged in the brief that the Court of Appeals affirm the lower court’s ruling in favor of defendants. The brief explains that, for purposes of a fair use analysis, Boldly is a transformative work that comments on both Star Trek and the works of Dr. Seuss. More generally, works like Boldly (i.e., works that fall in the category of mash-ups) have significant transformative value as they can add commentary, humor, or insight to the underlying works and can imbue those works with new meaning. Fair use should protect the creation of these kinds of culturally-valauble works, the creation of which might be chilled under a system that requires licensing.
Amici on the brief include:
- the Electronic Frontier Foundation, a member-supported, non-profit civil liberties organization that works to protect free speech and privacy in the digital world;
- the Organization for Transformative Works, a non-profit organization dedicated to protecting and preserving non-commercial fan works based on existing works, including popular television shows, books, and movies;
- Public Knowledge, a non-profit organization dedicated to preserving the openness of the Internet, promoting creativity through balanced intellectual property rights, and protecting the rights of consumers to use innovative technology lawfully;
- Francesca Coppa, a Professor of English and Director of Women’s and Gender Studies at Muhlenberg College;
- David Mack, a New York Times bestselling author who has written episodes for Star Trek: Deep Space and several Star Trek novels; and
- Magdalene Visaggio, the writer and creator of the Eisner-nominated comic series Kim & Kim and Eternity Girl.
EFF has its own writeup of the case and the amicus brief here.
Fall 2019 Cyberlaw Clinic students Katie Lin and Tyler Bowen contributed to the writing of the brief, along with former Clinic interns Shenelle Salcido and Michelle Rodriguez, former EFF intern Carmen Sobczak, Professor Francesca Coppa, and Chris Bavitz and Mason Kortz from the Clinic.