Un-Fair Use Case - 9th Circuit

[jaF0]

SAN DIEGO (CN) — “Victory is life” not for Star Trek, but for Dr. Seuss, whose publisher emerged victorious Friday in a copyright fight at the Ninth Circuit over the children’s classic “Oh, the Places You’ll Go.”

Dr. Seuss Enterprises sued publisher ComicMix in 2016 over the crowd-sourced Star Trek mash-up “Oh, the Places You’ll Boldly Go,” written by Star Trek episodes writer David Gerrold.

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A Ninth Circuit panel found Friday that the lower court was incorrect to find in favor of ComicMix in the copyright dispute.

The work was not fair use permissible under copyright laws, U.S. Circuit Judge M. Margaret McKeown wrote in the 34-page order, remanding the copyright case to U.S. District Judge Janis Sammartino for disposition.

“‘Boldly’ is a mashup that borrows liberally — graphically and otherwise — from ‘Go!’ and other works by Dr. Seuss, and that uses Captain Kirk and his spaceship Enterprise to tell readers that ‘life is an adventure but it will be tough.’ The creators thought their Star Trek primer would be ‘pretty well protected by parody,’ but acknowledged that ‘people in black robes’ may disagree. Indeed, we do,” McKeown, a Bill Clinton appointee, wrote.

The Star Trek mash-up’s use of Dr. Seuss’ copyrighted works was not fair use — it’s not a licensed work of Seuss or otherwise authorized by Dr. Seuss, which was the top licensed book brand in 2017, according to the order.



https://www.courthousenews.com/seuss-star-trek-mash-up-crash-lands-with-ninth-circuit/

 

[Bramblethorn]

Interesting comparing this with Campbell v. Acuff-Rose, a similar case where SCOTUS went the other way on 2 Live Crew's cover of "Pretty Woman". The 9th Circuit order references Campbell heavily.

AFAICT from quick skimming, the main points of difference between the two cases are:

- 9th Circuit rejected the "parody"/"transformative" claim. Their argument seems to be that "Boldly" is basically the same story as the original, just repackaged with Star Trek trappings, without actually being comment/criticism of the original.

- Although parody often needs to copy significant amounts of the original work, "Boldly" copies TPYG much more closely than it'd need to. A lot of the visuals are virtually identical.

- Effect on potential market: 2LC's song was not considered likely to hurt sales of the original, but "Boldly" may be sold as a substitute for the original (which goes back to the similarities above).

 

[jehoram]

One of the pioneers in posing situations for this sort of legal dispute is William Gaines, the publisher of MAD Magazine. His magazine's parodies always challenged the rights of other agencies in television shows, movies, and other media. One case, in which he published a series of song parodies, got him all the way up to the Supreme Court, where the decision came down mostly in his favor. That paved the way for other parodists to ply their craft with assurance of legal protection.

It's interesting that at first, the TV shows and movies resented his publication of parodies. But as the influence of the magazine grew, they changed their minds and actually gave the MAD artists still shots of the characters and encouraged the creation of these parodies, as an avenue of free publicity.

That doesn't mean, of course, that there are no limits, as the "Places You'll Boldly Go" demonstrates. I guess the Dr. Seuss estate didn't see it that way, though.

 

[Hypoxia]

The Gaines/MAD precedent freed others. Pete Millar published hot rod magazines but also cartoon mags aimed at niche audiences. I recall Drag Toons, Racin' Toons, Ski Toons, Surf Toons, Car Toons. The auto mags feature work by Ed "Big Daddy" Roth, also a designer and builder of weird cars.

Ah, but Surf Toons... with Rick Griffin, who also painted Grateful Dead and christian-rock album covers. Griffin had a popular series about a short surfer, Murph the Surf (the name was appropriated by a notorious criminal). Griffin parodied a prominent Broadway musical and film as Surf Side Story. Murph falls in love with the beautiful Murphia, and sings her praises, notably improving on Sondheim's lyrics, the hodads would say.

I think Griffin also created (The Waves Are Alive With) The Sound Of Surfing, where Murph and another Murphia take their surf-band kids out to Maverick's and Waimea to escape something or other. Without the Gaines decision, this would not have been possible and the world would be culturally poorer.

 

[Abbafan]

People tend to overestimate what's allowed by fair use, but this looks like pretty clear cut parody. Someone mentioned Mad magazine, and this is the sort of thing you might have seen in Mad.

 

[Bramblethorn]

People tend to overestimate what's allowed by fair use, but this looks like pretty clear cut parody. Someone mentioned Mad magazine, and this is the sort of thing you might have seen in Mad.

In copyright law the meaning of "parody" is more specific than the way it's often used in general conversation. "Parody" is imitating another work as a way of criticising or commenting on that work, not just something funny that makes use of copyrighted material.

The 9th Ct. ruling says:

Boldly is not a parody. ComicMix does not seriously contend that Boldly critiques or comments on Go!. Rather, it claims Boldly is a parody because it situated the “violent, sexual, sophisticated adult entertainment” of Star Trek“in the context of [Dr. Seuss]” to create a “funny” book. We considered and rejected this very claim in an appeal involving another well-known book by Dr. Seuss—The Cat in the Hat (Cat). The retelling of the O.J. Simpson double murder trial in the world of Cat—in a book titled The Cat NOT in the Hat! A Parody by Dr. Juice (Not)—was not a parody of Cat. Penguin Books, 109 F.3d at 1396, 1401. We explained that “broadly mimic[king] Dr. Seuss’ characteristic style” is not the same as “hold[ing] his style up to ridicule,” and that without a critique of Cat,all Not did was “simply retell the Simpson tale” using the expressive elements of Cat “to get attention or maybe even to avoid the drudgery in working up something fresh.”

This page explains a distinction between "parody" and "satire". Looks like "Boldly" is more of a case of satire, which doesn't get "fair use" protection.

It's been a while since I read MAD, and I wouldn't like to venture an opinion on whether a court would consider their stories to be "parody" or "satire". But even if "satire", there are some differences there.

Taken from the 9th Ct. ruling, here's a side-by-side example of the original Dr. Seuss vs. "Boldly":

They've changed a few elements for the Star Trek theme, but the rest is virtually identical. Every bend and branch on the tree, every rock, even the shape of the grass at the tree's base - it's almost tracing. The ruling has several other examples like this. As well as copying images, they also copied the story structure very closely - and the artist and writers seem to have confirmed in testimony that they were going for a beat-by-beat, line-by-line imitation, which wouldn't have helped their case at all.

Fair use recognises that sometimes you have to copy part of a thing in order to comment on it, or to evoke it, but part of the test is how much you copied. The ruling here found that Boldly copied much more and more closely than was needed (assisted by some possibly unwise admissions from the artist).

From what I recall, MAD copies far less, and they have their own distinctive visual style.

There's also the substitution angle. A MAD piece isn't likely to hurt the market for the work it's based on; nobody thinks "I read the MAD version so no point in seeing the film". But the decision notes some evidence that "Boldly" might be competing with "Go!" for sales.

There's a question here about onus of proof. Seems the publishers of "Boldly" misunderstood legal precedent and believed that it was up to Seuss to prove market harm - when in fact, they needed to provide evidence for absence of harm if they wanted to stand on it as a defense.

I am not a lawyer, but reading through this, I get the sense that the publishers of "Boldly" were not well advised. Especially at the point where they're making a legal argument which the very same court had already rejected on a previous Dr. Seuss parody!

 

[RandyD1369]

Another aspect of this case, though officially overlooked at 9th Circuit, is that the lead author, David Gerrold has had this sort of issue with his writing for decades. If anyone remembers the Star Trek episode called "The Trouble With Tribbles," Gerrold took Heinlein's creatures called "flatcats" from the novel "The Rolling Stones" and renamed them tribbles, then duplicated Heinlein's flatcat population explosion AND Heinlein's solution to the problem, all without permission or authorization. After the episode had been shot and scheduled for broadcast, he informed Heinlein "there might be a problem." Heinlein was royally pissed but ultimately decided not to sue because of the likely high cost of litigation. Gerrold "promised" to never do anything like it again, but that promise appears to have been meaningless.

 

[MimiRay]

This is a good example of why Weird Al always tries to get permission for his parodies. Some of them may not strictly qualify as parody.

 

[Bramblethorn]

This is a good example of why Weird Al always tries to get permission for his parodies. Some of them may not strictly qualify as parody.

Yeah, I think some do and some don't.

"Jurassic Park": uses the music of "MacArthur Park", but it's singing about the movie "Jurassic Park". So, probably not parody, legally speaking.

"(This Song's Just) Six Words Long": uses the music of "Got My Mind Set On You" to make fun of GMMSOY. So, more likely to count as parody.

IIRC Weird Al makes sure to get the legal right to use the music, but also (since "Amish Paradise") makes sure the musician's okay with it too, as a matter of professional courtesy.

 

[SimonDoom]

Yeah, I think some do and some don't.

"Jurassic Park": uses the music of "MacArthur Park", but it's singing about the movie "Jurassic Park". So, probably not parody, legally speaking.

"(This Song's Just) Six Words Long": uses the music of "Got My Mind Set On You" to make fun of GMMSOY. So, more likely to count as parody.

IIRC Weird Al makes sure to get the legal right to use the music, but also (since "Amish Paradise") makes sure the musician's okay with it too, as a matter of professional courtesy.

I'd never heard TSJSWL before. Very funny, and true. Definitely a parody.

I have the feeling that Weird Al's stuff is one of those corners of the Fair Use universe that astute musicians understand enhances the market for their music rather than ripping it off or hurting. Like a lot of fan fiction.

 

[PennameWombat]

Yeah, I think some do and some don't.

"Jurassic Park": uses the music of "MacArthur Park", but it's singing about the movie "Jurassic Park". So, probably not parody, legally speaking.

"(This Song's Just) Six Words Long": uses the music of "Got My Mind Set On You" to make fun of GMMSOY. So, more likely to count as parody.

IIRC Weird Al makes sure to get the legal right to use the music, but also (since "Amish Paradise") makes sure the musician's okay with it too, as a matter of professional courtesy.

You recall correctly. He even has an FAQ about it: Weird Al FAQ (about third entry down.) That says he does it to "maintain the relationships" with other musicians but just as importantly it ensures he protects his rights to his alterations and additions. Below link covers the Coolio Amish Paradise contretemps (which also highlights that artists don't always own the rights to their works.)

It's the reason this thread exists, but yes, parody has to comment on the original.

I'd never heard TSJSWL before. Very funny, and true. Definitely a parody.

I have the feeling that Weird Al's stuff is one of those corners of the Fair Use universe that astute musicians understand enhances the market for their music rather than ripping it off or hurting. Like a lot of fan fiction.

This is true and likely why so many are so willing for him to do his thing. But some artists have refused to give Weird Al permission and as a result he's passed on doing those songs: 9 Musicians Who Refused to Let "Weird Al" Yankovic Parody Their Songs

Reasons given there range from Paul McCartney being a vegetarian (instead of Live and Let Die, it was to be Chicken Pot Pie) to certain songs being "too personal" to an artist but they let him do others. With Coolio and Gangster's Paradise -> Amish Paradise, Coolio's label (who owned rights) had given permission but no one had asked Coolio personally. Led to hard feelings but in the end they made up.

And Prince is the very rare artist who denied all requests.

Finally, so long as we're talking Dr. Seuss. I ran across some time ago a suit where they'd gone after a work that was done in his style to comment on the 2000 election (Dr. Seuss Goes to Florida, maybe). His estate sued and the authors claimed parody but couldn't cite any works, they'd simply copied his style. But I can't find reference to it now. My Google-fu has failed me. Or... I was hallucinating before.

 

[Bramblethorn]

I'd never heard TSJSWL before. Very funny, and true. Definitely a parody.

I enjoy that one but it always bugs me, because as sung it's "This song is just six words long". Which is seven words.

I have the feeling that Weird Al's stuff is one of those corners of the Fair Use universe that astute musicians understand enhances the market for their music rather than ripping it off or hurting. Like a lot of fan fiction.

Absolutely, and Coolio eventually came round on that too.

 

[Abbafan]

It's been a while since I read MAD, and I wouldn't like to venture an opinion on whether a court would consider their stories to be "parody" or "satire". But even if "satire", there are some differences there.

"In legal terms, a parody is a literary or artistic work that imitates the characteristic style of an author or a work for comic effect or ridicule. It is regarded as a criticism or comment on the original copyrighted work. In simple terms, it has to convey to the audience some type of message about the original work."

Every legal definition of parody I've found has been something along those lines. I'm not a lawyer either, but it's hard to imagine anything fitting the definition better than those old Mad magazine send ups of movies and shows. Once in a while they'd do a joke that was more satirical, make fun of politics or something, but that wouldn't disqualify it from being parody.

I overstated things saying it looked clear cut. Parodies often follow a specific stories plot fairly closely, but it sounds like the major issue here is that the judge thought it resembled the original too much, just dropped Star Trek references in to the original, to the point that it could take away sales from Seuss's book.

When it comes to satire and parody, the line between them can be blurry. Something like White and Nerdy by Weird Al could absolutely be considered satire, but he's also poking fun at the original singer and song using imitation,exaggeration. I would not fault someone for calling something like that a parody. Legally, I would think the parody elements would be enough for it to be protected. Not the case with this Star Trek - Dr. Seuss book, though, it looks like. It sounds more like a mash up to me, actually, now that I think about it.