With Dr. Seuss recently in the news for the decision of his estate to pull from publication certain books that were racially insensitive, we thought that we would go back and look at another decision involving the good doctor that we did not get around to reviewing when it came out at the end of last year – the decision that a book, Oh, The Places that You Will Boldly Go, a mash-up of Dr. Seuss and Star Trek, was an infringement on the Seuss’ copyrights and did not qualify for fair use treatment.  Who knew that Dr. Seuss would play such a prominent role in legal and public policy!  As we summarize below, and as we have written before (see for instance our articles here and here), fair use is not a simple concept or one that is as broadly applicable as many in the media industry seem to think.

The decision from the 9^th Circuit Court of Appeals in the Boldly Go case overturned a lower court opinion finding the book to be a parody of the original Seuss work (Oh, the Places You Will Go), and thus entitled to fair use protection.  The 9^th Circuit found that Boldly Go was not a fair use, but instead an improper exploitation of the copyrighted work.  The Court reached its decision by reviewing the factors set out in Section 107 of the Copyright Act that are required for a fair use analysis.  This decision is one which all media companies should review carefully, as it makes clear that fair use is not as broad of a concept as apparently believed.  Importantly, fair use does not cover any use that may be an amusing adaptation of an original work.  For instance, I am often asked by radio companies whether taking a song and substituting a new set of lyrics that provide some funny commentary on some newsworthy topic is fair use.  As is evident from the analysis undertaken in the Boldly Go case, unless the “parody” is making fun of the original copyrighted work, it may well not qualify as a fair use and thus may be subject to a claim of copyright infringement.
Continue Reading Dr. Seuss and Fair Use – Just Because You Make a Funny Version of a Copyrighted Work Does Not Mean that You Will Escape an Infringement Claim