Monday, November 1, 2021

Do Dr. Seuss and Fair Use (Comic)Mix? - Part 4


            It was recently announced that the lawsuit between Dr. Seuss Enterprises and ComicMix has settled.[1] I have been following the case since it began in 2016, and I’ve previously written entries about it. You can find the most recent entry, summarizing the Ninth Circuit overriding the lower court’s finding of fair use, here.

            In a filing with the court, ComicMix and Seuss agreed that ComicMix’s book Oh, The Places You’ll  Boldly Go! infringes on copyrights owned by Seuss, and ComicMix is prohibited from selling or distributing the book. ComicMix has stated that the motivation to settle the case was Ty Templeton’s recent diagnosis with cancer. ComicMix, and the other defendants, chose not to continue with the lawsuit so that Templeton could focus on getting better.[2]

            Five years after it began, the case is over. ComicMix prevailed on quite a few of the claims Seuss initially asserted, but after its initial fair use win was reversed by the Ninth Circuit, it decided to stop fighting. As I mentioned in a previous post, most companies and people don’t fight this long. It is time-consuming and expensive to do so. However, when these disputes do get litigated, it helps shape the law and provide guidance for others.

            What did the ComicMix case achieve? It showed that it can be difficult to prevail on a claim of trademark or trade dress infringement based on distinctive typography in a book. It clarified some of the fair use factors used to determine whether a work is a copyright infringement. Finally, it serves as a warning that mashing up two different properties does not automatically qualify as a fair use under copyright law.

            If you learn anything from this case, it should be to proceed cautiously when you are utilizing someone else’s work or character without their permission in your own work. Unless it qualifies as a fair use, it is likely copyright infringement, and if you want to claim fair use, you may have to go to court to defend yourself.



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