Seuss-Star Trek mashup crashes and burns at Ninth Circuit

An excerpt from the ComicMix book “Oh, the Places You’ll Boldly Go,” a parody of the Dr. Seuss classic “Oh, the Places You’ll Go.”

SAN DIEGO (CN) — “Victory is life” not for Star Trek, but for Dr. Seuss, whose publisher emerged victorious Friday in a copyright fight at the Ninth Circuit over the children’s classic “Oh, the Places You’ll Go.”

Dr. Seuss Enterprises sued publisher ComicMix in 2016 over the crowd-sourced Star Trek mash-up “Oh, the Places You’ll Boldly Go,” written by Star Trek episodes writer David Gerrold.

The children’s book publisher claimed the mash-up competed with the Seuss classic in the graduation gift market.

Seuss’ children’s book — with its message of accomplishing individual success in the face of adversity — is often given to graduates embarking on their careers. It shoots to The New York Times’ bestsellers list every spring during graduation season.

A Ninth Circuit panel found Friday that the lower court was incorrect to find in favor of ComicMix in the copyright dispute.

The work was not fair use permissible under copyright laws, U.S. Circuit Judge M. Margaret McKeown wrote in the 34-page order, remanding the copyright case to U.S. District Judge Janis Sammartino for disposition.

“‘Boldly’ is a mashup that borrows liberally — graphically and otherwise — from ‘Go!’ and other works by Dr. Seuss, and that uses Captain Kirk and his spaceship Enterprise to tell readers that ‘life is an adventure but it will be tough.’ 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,” McKeown, a Bill Clinton appointee, wrote.

The Star Trek mash-up’s use of Dr. Seuss’ copyrighted works was not fair use — it’s not a licensed work of Seuss or otherwise authorized by Dr. Seuss, which was the top licensed book brand in 2017, according to the order.

McKeown noted ComicMix “does not dispute that it tried to copy portions of ‘Go!’as accurately as possible” with the creators of the book using a side-by-side comparison chart to “match the structure of ‘Go!’” The illustrations also closely mimic those in the Dr. Seuss original, McKeown wrote in the order, which included side-by-side images from both works.

Under the fair use doctrine of copyright law, a work can be considered fair use if it is “transformative” or “adds something new, with a further purpose or different character, altering the first with new expression, meaning or message.”

Parodies, for example, are permissible under the fair use doctrine even though they “mimic” an original work in their commentary or criticism of it.

The makers of the Star Trek mash-up had argued their book was a parody of “Oh, the Places You’ll Go,” but the Ninth Circuit panel found that to be untrue.

“’Boldly’ is not a parody. ComicMix does not seriously contend that ‘Boldly’ critiques or comments on ‘Go!.’ Rather, it claims ‘Boldly’ is a parody because it situated the ‘violent, sexual, sophisticated adult entertainment’ of Star Trek ‘in the context of [Dr. Seuss]’ to create a ‘funny book,’” McKeown wrote.

The panel noted they rejected a previous claim involving another Seuss classic “The Cat in the Hat,” which retold the O.J. Simpson double-murder trial in “The Cat NOT in the Hat! A Parody by Dr. Juice.”

Likewise, the Star Trek mash-up was not transformative of “Oh, the Places You’ll Go,” the panel found, rejecting Comic-Mix’s argument the work was transformative because it replaced Seuss characters and elements with Star Trek material.

“While ‘Boldly’ may have altered Star Trek by sending Captain Kirk and his crew to a strange new world, that world, the world of ‘Go!,’ remains intact. ‘Go!’ was merely repackaged into a new format, carrying the story of the Enterprise crew’s journey through a strange star in a story shell already intricately illustrated by Dr. Seuss,” McKeown wrote.

“Although ComicMix’s work need not boldly go where no one has gone before, its repackaging, copying, and lack of critique of Seuss, coupled with its commercial use of ‘Go!,’ do not result in a transformative use,” the panel added.

ComicMix also “sidesteps the fact that it intentionally targeted and aimed to capitalize on the same graduation market as ‘Go!,’” McKeown wrote, noting the planned release date was scheduled to launch “in time for school graduations.”

As the copyright holder, Dr. Seuss Enterprises has also authorized many derivative works of “Oh, the Places You’ll Go!” which is set to be turned into an animated motion picture by Warner Animation Group in 2027.

“ComicMix does not overcome the fact that Seuss often collaborates with other creators, including in projects that mix different stories and characters. Seuss routinely receives requests for collaborations and licenses, and has entered into various collaborations that apply Seuss’s works to new creative contexts,” McKeown wrote.

But the panel did not find ComicMix violated Dr. Seuss Enterprises’ trademarks and affirmed Sammartino’s denial of the trademark claim.

Dr. Seuss Enterprises is represented by DLA Piper partner Stan Panikowski, while ComicMix is represented by attorney Dan Booth. Both attorneys did not return call and email requests for comment.

Sammartino is a George W. Bush appointee. U.S. Circuit Judges N. Randy Smith, also a Bush appointee, and Barack Obama appointee Jacqueline Nguyen joined McKeown’s opinion.

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