Here we laugh again! The eternal controversy over parody scope in Copyright law

by federicapezza

Remix, mash-up, fan fictions and “other strange animals”:  welcome all to the taking from-era.The eternal tension between original creator property rights and guarantee of social interests in Copyright law, is becoming even more crucial nowadays, due to the increasingly common practice of elaborating and reinterpreting copyrighted material.

One of the latest issues comes from the US.

Again, a balance is required. This time, however, the bone of contention lies in the drawings of comic books. Here we go again my dear copyright lawyer! Well, here we laugh again, to be fair.

But first things first. Let’s have a look at the facts.

Comixmix has been sued by Dr Seuss Enterprises(DSE), the estate of late children’s author and illustrator Theodor Seuss Geisel, for trying to sell a book called Oh, The Places You’ll Boldly Go!, proposed on Kickstarter as a “mash-up” of Dr. Seuss and Star Trek. In particular, the plaintiff, in its formal complaint, alleges that the unauthorized publication of the book,” by using innumerable copyrighted elements” of the original and iconic Dr Seuss “Oh the Place You’ll Go” , presents a clear infringement of his copyright under the US Copyright Act s. 106. Further, it would also amount to a trademark infringement under the Lanham Act, due to the distinctiveness of Dr Seuss marks[1]. On the other side, the creators, although totally aware of the risks connected to their work, rely on the fair use defence under s. 107 of the US Copyright Act. [2]

Quite interestingly, the lawsuit follows another complaint, based on the same reasons, which has been filed by CBS and Paramount Pictures over another crowd-funded project — a professional-quality “fan film” titled Axanar[3].

But there is more.

What makes the dispute even more intriguing to the non-geeks is the fact that the plaintiff, Dr Seuss, had already been involved, a few years ago, in one of the US leading cases on Copyright Law and Fair Dealing. [4]In that instance the US Court, having to decide whether the “Cat NOT in the Hat “by Dr Juice constituted an infringing copy of Dr Seuss book “The Cat in the Hat”, found for the plaintiff, ruling out the justifiability of the work under the US fair use doctrine. In that occasion the court adopted a narrow[5] interpretation of parody notion, which excluded the applicability of the exception any time the new work, rather than targeting the previous one(target parody),made use of it as a weapon against society.

Thus, how can one draw the line between authorised fan fiction and infringing copy?        As always, when talking about copyright, the answer is not a straightforward one.Law changes, society evolves, judicial interpretation is subjective…

So keep calm and go back to your Marvel Comics, my dear copyright lawyer.  That’s the daily lesson: he who laughs last, laughs best.

Federica Pezza

Assistant Editor, QMJIP


 

[1] https://www.documentcloud.org/documents/3219155-Seuss-Suit.html

[2] Noticeably, on their webpage, anticipating the lawsuit, they already proclaimed While we firmly believe that our parody, created with love and affection, fully falls within the boundary of fair use, there may be some people who believe that this might be in violation of their intellectual property rights. And we may have to spend time and money proving it to people in black robes. And we may even lose that.”

[3] https://www.documentcloud.org/documents/2660454-Startreklawsuit.html

[4] DR SEUSS ENTERPRISES v. PENGUIN BOOKS USA INC http://caselaw.findlaw.com/us-9th-circuit/1384979.html

[5] For the developmets on the fair use defence in US look at Cariou v Prince where a broader notion of fair use based on the transformativeness of the work has been elaborated.