IP Tech Knowledgy

Putting portions of someone else’s material in your own creative work, even in jest, is not always an allowable Fair Use and may infringe their copyright. The Fair Use defense to copyright infringement has been broadened in recent years based on an expanding judicial view of what constitutes a “transformative” use. That trend was put in check earlier this month in a case relating to a mash-up of Dr. Seuss books. In Dr. Seuss Enterprises LP v. ComicMix LLC et al., a federal appellate court ruled that Dr. Seuss’s infringement case can move forward because the mash-up was neither a transformative use nor a parody of the original. The copy, called Oh, the Places You’ll Boldly Go!, used the settings, images, scenes and fairly exact drawings of Dr. Seuss classics, including Oh, the Places You’ll Go!, How The Grinch Stole Christmas and The Sneetches and Other Stories, but transplanted Star Trek characters in place of Dr. Seuss’ characters.

A Fair Use analysis generally requires analyzing the four nonexclusive factors in Section 107 of the Copyright Act, which, briefly, are the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion taken, and the effect of the use on the potential market or value of the original. Although, in theory, all four of the Fair Use factors must be considered equally, frequently the most prominent factor is the first, leading to a crucial analysis of whether the work that includes the copied material is a “transformative” use. According to the 1994 Supreme Court case of Campbell v. Acuff-Rose Music, to be transformative, the new usage must “add something new, with a further purpose or different character, altering the first with new expression, meaning or message.” A work that “merely supersedes the objects of the original creation,” is not transformative. If a copy does not “possess a further purpose or different character” than the original, but is merely “merely recontextualizing the original expression by ‘plucking the most visually arresting excerpts’” of the original, then the copy is likely not a Fair Use. The Dr. Seuss court case also found that not all humorous uses of an original can be protected from infringement by being deemed a parody. A parody is a Fair Use only if it includes some type of critique or comment on the original, rather than just using the original’s creations in a humorous way. In this case, there was no new purpose or character for the work other than a clever rhyming story, and it did not comment or critique the Dr. Seuss works.

Ned T. Himmelrich
410-576-4171 • nhimmelrich@gfrlaw.com