December 18, 2020

Dr. Seuss Enter., L.P. v. ComicMix LLC, No. 19-55348, 2020 WL 7416324 (9th Cir. Dec. 18, 2020)

ComicMix planned to publish a book called Oh, the Places You’ll Boldly Go!, a mashup that borrowed liberally from Dr. Seuss’s Oh, the Places You’ll Go! to tell a similar story using Star Trek characters. Dr. Seuss Enterprises sued, alleging copyright and trademark infringement. The district court granted summary judgment in favor of defendants. The Ninth Circuit reversed as to the copyright claim, holding that that the fair use defense is not available if a new work largely inserts new characters into familiar stories and illustrations.

The Ninth Circuit held that none of the four fair use factors favored ComicMix. (1) Character of use: the mashup was commercial and nontransformative because it did not critique or comment on the original work, but rather paralleled the original work’s purpose and repackaged its illustrations. (2) Nature of copyrighted work: the copied work was creative and expressive. (3) Amount copied: the amount copied was substantial. (4) Market impact: ComicMix did not meet its burden to show the absence of an economic impact on the market for the original work.