I’ve been following the Dr. Seuss versus ComicMix case for a while. While the case is still ongoing, the ComicMix website recently posted a plea for help. ComicMix is starting to run out of money, and they are now seeking donations to continue defending the lawsuit.
ComicMix chose to publish a mash-up book using intellectual property it does not own, and involving an area of copyright and trademark law that is still not well-defined, and it now finds itself involved in a lawsuit that could help define the legal boundaries of fair use, mash-ups, and even fan art, for everyone else.
ComicMix’s plight is not atypical and brings up two points I’d like to discuss. First, fair use is a defense against copyright infringement claims. Second, defending your rights in the American legal system can be expensive and when you’re litigating a dispute in an area of law that is still being developed, your chances of winning are uncertain.
As I’ve mentioned before, fair use is a strong defense to a copyright infringement claim. However, in order to avail oneself of it, you are probably going to be sued. Even though some courts have found the copyright statute to require copyright owners to consider whether fair use applies before filing an infringement lawsuit (see for example Lenz v. Universal Music Corp., 801 F.3d1126 (9th Cir. 2015), there have not been any cases, of which I’m aware, where the copyright owner has faced any adverse consequences for initiating a lawsuit.
Even in the Lenz case, the court gives copyright owners leeway by stating they must have a “subjective good faith belief that the use was not authorized by law[,]” i.e., fair use. Basically, in my opinion, if an intellectual property owner believes you are infringing on their work, you are probably going to get sued if you don’t capitulate to their requests.
No matter how great you think the chances are you will win your case, litigation is time-consuming and attorney’s fees can add up quickly. For the most part in the American legal system, each party pays their own fees. While there are some statutes that allow for a winning party to recover their attorney’s fees from the other party, it is not very common.
One of the unfortunate side effects of the system is that it is safer and cheaper to not fight than to litigate a dispute, even if you believe you are in the right. I do applaud those people and companies that choose to fight. Without people willing to litigate cases, the boundaries of the law would not be explored and defined. Even when someone fights and loses, often society gains because the judicial decisions help shape and guide the decisions of others facing similar dilemmas.
If you are interested in donating to assist ComicMix, the link is here.