Monday, February 1, 2021

"Fair Use" of a copyrighted work?

Here's a case from December 2020 in the United States Court of Appeals for the Ninth circuit.  Here's a map of the circuits.

This case is called Dr. Seuss Enterprises v ComicMix LLC and is an appeal of a case from the District Court for the Southern District of California.

Several entities filed Amicus Curiae ["friend of the court"] briefs, including Motion Picture Association Of America, Inc., The Copyright Alliance, and Sesame Workshop.

Defendants wrote a book called Oh, the Places You'll Boldly Go! ("Boldly")  They claimed it was a "fair use" of the Dr. Seuss book Oh, the Places You'll Go! ("Go")

The opinion includes this awesome line - 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.

Fair Use requires analysis of the following four concepts under §107 of the Copyright Act of 1976:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

The court analyzed each factor above:

(1) Whether and to what extent the new work is transformative. A transformative work adds something new, altering the first with new expression, meaning, or message.  This includes criticism, comment, news reporting, teaching, scholarship, and research.

The benchmarks of transformative use -
(1) the creation of new information, new aesthetic, new insights and understanding;
(2) new expression, meaning, or message,  the addition of value to the original; and
(3) the use of quoted matter as “raw material,” instead of merely repackaging it

Because Boldly left the inherent character of the book unchanged, it was not a transformative use of Go.

(2) The nature of the copyrighted work.  Factual versus creative.  There is less protection for factual [non-fiction] works.  But Boldly copied a creative and expressive work.  Therefore, Go is entitled to more protection.

(3) The amount [percentage] and substantiality [core features] of the portion used in relation to the copyrighted work as a whole.

Percentage: ComicMix’s copying was considerable, including 14 of Go’s 24 pages, close to 60% of the book. ComicMix’s verbatim copying of the original drawings also weighs against fair use.

Core features: The qualitative analysis often asks if the copyist took the “heart,” the most valuable and pertinent portion of the work.  The court found that ComicMix copied the substance or heart of Dr. Seuss's style of writing and artwork.

(4) The extent of market harm caused by the copying, whether the copying would result in a substantially adverse impact on the potential market for the original and derivative works.

ComicMix intentionally targeted and aimed to capitalize on the same graduation market as Go. The planned release date for the first publication of Boldly was scheduled to launch in time for school graduations.

Seuss has already vetted and authorized multiple derivatives of Go.  Therefore, targeting the same market without permission from Seuss harmed the market for the original and authorized derivative works.

The court ruled that the ComicMix infringed on Seuss's copyrighted work.

Do you agree with the court's conclusion?  Why or why not?


  1. I like that Seuss work, and didn't know there were any authorised derivatives, but I would say the court made the right decision :)

    1. I actually own the Boldly book. (Not that I can find it right now.) I had no idea it wasn’t authorized until a while ago when I first heard about this lawsuit. And I agree with you. It’s way too much like a Dr Seuss book to NOT be infringing.