A mash-up of Dr. Seuss and Star Trek? It's an unusual idea that has great humor potential and some strong support from people who put their dollars, via crowdsourcing, where their entertainment interests lie. It's also landed a couple of authors and the publisher in a legal battle with Dr. Seuss Enterprises.
Trademarks, patents, and copyright are three of the major tools to protect intellectual property. Dr. Seuss Enterprises has claimed that the mash-up, called Oh, the Places You'll Boldly Go! (a take-off on Dr. Seuss's Oh, the Places You'll Go! crossed with the Star Trek phrase "boldly go where no one has gone before") was a copyright infringement. The publisher of the title and the authors -- one wrote the Star Trek's Trouble with Tribbles script and the other an art vet of Batman and The Simpsons -- recently saw some legal hope. A court ruling found for them on a couple of grounds, but the company still may get the ultimate upper hand.
Dr. Seuss Enterprises sued ComicMix LLC, the publisher of the mash-up, as well as writer David Gerrold and illustrator Ty Templeton. Reportedly defendants had raised $30,000 on crowdfunding site Kickstarter to produce the new title. Dr. Seuss Enterprises seeks up to $150,000 per infringed copyrighted work and all profits or revenue, which would include the Kickstarter take.
The United States District Court for the Southern District of California delivered a decision on the defendants' motion to dismiss the complaint. Although ComicMix claimed "vindication" and that the court "partially granted" the motion, that's not exactly what a preliminary decision said.
The question was whether the mash-up made so-called fair use of the Seuss works. (Rights for Star Trek are split between CBS, for the television series, and Paramount Pictures, for the films and neither seems to have objected to the interstellar flight of fancy.) Under U.S. copyright law, there are four factors that determine fair use, which allows one person to make use of the protected work of another:
- purpose and character of the use, including whether it is transformative
- nature of the copyrighted original work
- amount of the work used and whether it was substantial
- effect on the potential market for the original
The court found in favor of the defendants on the first ground, saying that the work was transformative, creating something new rather than simply copying and didn't push the originals out of the market. On the second factor, the court found "only slightly" in the favor of the plaintiffs because there have been millions of Dr. Seuss books published over many years. A new work or one unpublished would have received greater deference. The court also noted that the writer and artist used only what was necessary to achieve the new work. The fourth part, the question of licensing royalties, was in the favor of the plaintiffs. Given the split nature of the decision, the fair use defense "fail[ed] as a matter of law" in a preliminary ruling.
But there is better possible news for Boldly Go in the future. The court recognized that it had presumed harm to Dr. Seuss Enterprises, even though there's was no evidence presented. Dr. Seuss Enterprises reportedly has a couple of weeks to amend its complaint and, presumably, provide evidence of real harm. Absent that, the court could decide to dismiss the case.
Besides the immediate interest to fans of either Seuss or Star Trek, there are other potential implications. Mash-ups are commonly used in music, videos, writing, and the visual arts -- and have been for many years.
Picasso, for example, was heavily influenced at one point by Degas and the former created a set of works that were interpretations of the latter's. Duke Ellington described jazz as a combination of European harmonic structures and African rhythms. And yet, there have been examples where one artist claims that another copied a work with almost no changes, a practice that has come to be called appropriation art.
A decision could have significant implications for many artistic industries.