DLA Piper represented Dr. Seuss Enterprises, L.P. (DSE), the owner of rights to the books and characters of Theodore Geisel (better known as Dr. Seuss), in a successful copyright appeal before the Ninth Circuit Court of Appeals. DSE asserted a copyright infringement claim against ComicMix, the authors and publisher of “Oh, the Places You’ll Boldly Go,” (Boldly), a “mash-up” book that combined copies of drawings and text from Dr. Seuss’s best-selling book “Oh, the Places You’ll Go!” (Go!) with elements of the Star Trek series.
The Ninth Circuit, reversing a district court ruling granting summary judgment to ComicMix, found that Boldly did not make copyright fair use of Go!. The opinion, written by Circuit Judge M. Margaret McKeown, held that ComicMix lost on each of the statutory factors used to analyze fair use. Specifically, the opinion ruled that Boldly did not transform Go! with new purpose or message, but intentionally copied the purpose and message of the original work, and did not add new expression or meaning, but merely “repackaged” the illustrations and text of Go! The court also held that Boldly unfairly took the “heart of Dr. Seuss’s works” and engaged in “extensive and meticulous copying of Go!”
Finally, the court found that Boldly “targets and usurps” the established market for Go!, as well as DSE’s potential market for a licensed mash-up combining Go! and other properties. It found that allowing ComicMix and others to make such unlicensed use of Go! “could ‘create incentives to pirate intellectual property’ and disincentivize the creation of illustrated books.” The appellate decision addresses important aspects of fair use law and is likely to provide protection for the rights of copyright owners in the future.
The DLA Piper team representing DSE in the appeal was led by partners Andrew Deutsch (Los Angeles), Stan Panikowski (San Diego), and Tamar Duvdevani (New York); of counsel Ryan Compton (Washington, DC); and associates Marc Miller and Joshua Schwartzman (New York).
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