A massive victory for fair use in the longrunning Dr Seuss vs Star Trek parody lawsuit


#1

Originally published at: https://boingboing.net/2019/03/14/fair-use-vs-seuss.html


#2

Anyone have any idea what the latest status of the War Against the Chtorr is?

I see he’s serialising the existing books (or at least the first one?) on his Patreon.


#3

I never knew this existed.
I now need this more than life itself.


#4

Well now that I know about this discount version, I am cancelling my order for 500 copies of One Fish, Two Fish, Red Fish, Blue Fish. That’s how it works, right?


#5

Why do people’s estate seem to contradict everything the person stood for? I hope a person who did such amazing word play would love good mashup parodies.


#6

They’re protecting their wallets. They can’t get any new saleable product out of him so they’re frantic to keep every penny they can.


#7

Uh, for-profit use, which this is, isn’t fair use, full stop.

This is designed to profit on two seperate trademarked creations, neither of which has given permission.

If this were a school project, sure. Even if it were a fundraiser for some Non-Profit, ok. But this is just the clever version of some glerp selling 3x3 paintings of Deadpool – for-profit abuse of an existing copyright.

Again, how is this a victory? And is use for profit “Fair Use?” Or should the hashtag not be ‘Protecting live creators from dead ones’ but 'Protecting profiteers and pirates over actual creators?"

To paraphrase Holly Hunter in Broadcast News, “I know it’s cute. I know it’s fun. It just isn’t fair use.”


#8

Untrue!

The for-profit status of a work is only one aspect of the work’s value considered.


#9

In a classic ‘Streisand effect’ move, attempting to suppress the parody has probably increased the potential market for it by an order of magnitude or two.


#10

For-profit use is one factor considered, but it should be the most important one. This isn’t criticism, or analysis; this isn’t parody. It isn’t educational. It’s conflating two trademarks so that people who own neither can profit. And again, if that isn’t copyright violation, I don’t know what is.

If Gerrold and Templeton put this up for funsies, or to raise money for a charity, fine. They didn’t. They did it for profit, and deserve their gall to have ramifications.


#11

Wonder how these guys are still under the radar.


#12

You… did… read the article, right? The judge pointed out that the claim was spurious from the start on the grounds that what was copied - the look and feel, couldn’t possibly meet the standard for copyright:

Examining the cover of each work, for example, Plaintiff may claim copyright protection in the unique, rainbow-colored rings and tower on the cover of Go! Plaintiff, however, cannot claim copyright over any disc-shaped item tilted at a particular angle; to grant Plaintiff such broad protection would foreclose a photographer from taking a photo of the Space Needle just so, a result that is clearly untenable under—and antithetical to—copyright law.

I believe you are conflating trademark law and copyright law here.


#13
  1. That judge is wrong. This was a dumb decision, as the work has NO VALUE outside of the value it appropriates form other creators.

  2. I am conflating copyright and trademark, you’re right. Because design is trademark – and this thing steals both Seuss and Trek design freely – and story is copyright, which is also being ripped off.

  3. Again, for-profit negates fair use, for me. Otherwise our creative world becomes Ctrl-C, Ctrl-C, and Ctrl-V over and over again.


#14

Understood. I wish you the best of luck in your crusade to remake the Us copyright and trademark systems!


#15

False.

First clause: true, and directly contradicting your previous assertion. Second clause: personal opinion stated as if it were fact or patently obvious common sense, but it is neither.

Very true! You don’t have a clue what copyright violation is.

Again, this your opinion presented as fact. It is also irrelevant: subjective value of a work is not a determining factor in the determination of whether a work meets the conditions of fair use doctrine.

False twice!

That’s nice. It’s not the law, though, so that doesn’t matter.

Demonstrably untrue and a very sad straw man. The work under discussion is not Ctrl-C, Cntrl-V. New drawings, new words, new work.

The imaginary version of copyright law that you advocate would stifle creativity and prevent any dynamic and impactful work that uses prior work as inspiration to create something new and amazing. Ovid stole a Babylonian origin myth to write “Pyramus and Thisbe”. Boccaccio stole from Ovid for the Decameron. Masuccio Salernitano stole from Boccaccio to write the short story “Mariotto and Ganozza”. Luigi da Porto stole from Salernitano to write the novella “Historia novellamente ritrovata di due nobili amanti”. Shakespeare stole from da Porto to write “Romeo and Juliet”. Your imaginary version of copyright law would mean not only that Shakespeare wouldn’t have been allowed to produce “Romeo and Juliet”, but also that we would never have had “West Side Story”. And – even if this were the point, but it’s not – “West Side Story” never impacted the financial success of William Shakespeare, because, spoilers, he’s dead, as are, spoilers, both Roddenberry and Geisel.

Your imaginary version of copyright law sucks, so it’s a good thing it’s not real.


#16

Let me try this again:

Shakespeare, yes, appropriated old folk tales. And AS SOON AS the two works here – Dr. Seuss and Star Trek – fall into Public Domain, then you can do what you will with them.

As both are still in copyright, this is a flagrant violation of copyright, for profit.

You’re quoting law, I’m explaining principle; I’m talking about a larger problem and you’re using the handy-dandy Internet Argument Flowchart (“Strawman!” “Subjective Opinion.”) to dissect what I’m saying because it disputes the idea that any creator can use any creation, regardless of ownership, at any time.

Again: Shakespeare didn’t have to worry about modern copyright law because we didn’t have it; the makers of this nonsense are infringing copyright for profit; they should be encouraged not to do so, or kept from doing so.

Finally, of course I’m sharing my subjective opinions. That’s what this is for. But before you break out the Libertarian ABC book, ask yourself: Why are you on the side of a bunch of ripoff artists* looking to line their pockets at someone else’s expense?

Public Domain is real, and good. But it doesn’t work like this, and wishing will not make it so.


#17

This is true! But you seem to be under the impression that until these works fall into public domain, nobody can do anything with them. And that’s not true, because fair use provisions exist. Do you not know what fair use is? Are you ignoring it? Are you insisting that we do or should live in a world where fair use doesn’t exist? The work in question falls under fair use provisions, so it is not a violation of copyright.

No, it’s not. It’s fair use. And again, whether it’s for profit is not relevant. If you create a derivative work that falls under fair use provisions, it is not a copyright violation, regardless of whether you sell the derivative work. If you create a derivative work that does not comply with fair use provision, or simply copy something you do not have the right to copy, it is a copyright violation, regardless of whether you sell the derivative work. Profit from the derivative work has nothing to do with the determination of whether it violates copyright.

Well, no, I’m not. I’m explaining it. But the law is the point, since we are discussing a legal ruling that determines the legal status of a work.

Are you? I still don’t know what principle you’re trying to explain, because you’re contradicting yourself, presenting false statements as fact, and not making much sense. I think the principle you’re trying to explain is that you believe that no derivative work should be legal under any circumstances because you believe that any derivative work negatively impacts the financial reward to a creator. But that’s not true. It’s not true in this case, and it’s not true generally. Financial impact isn’t the issue (copyright violations with no financial impacts on the copyright holder are still illegal), and some derivative works are perfectly legal (and perfectly ethical).

So either that’s not what you’re trying to explain (and you need to do a better job explaining it) or that is what you’re trying to explain (and you’re wrong).

What you’re railing against isn’t actually a problem for anybody, though.

But nobody is suggesting that that should be the case. I’m not suggesting that. Cory’s not suggesting that. Geigner’s not suggesting that. Sammartino’s not suggesting that. There is a very great difference between fair use (which this work is) and republishing a duplicate of somebody else’s work as your own (which this work is not). Again: are you choosing to pretend that difference does not exist, or do you genuinely not understand it? It’s not a subtle distinction, legally or ethically.

They are not infringing copyright, because fair use does not violate copyright. Profit is irrelevant to that determination.

I’m not! Because that’s not what this is.

This is new work inspired by previous works. It doesn’t duplicate prior work, it doesn’t “rip off” prior work, it doesn’t violate copyright of prior work. It takes prior work, adds something original, makes a new thing. Which is what all artists do all the time.

At whose expense? Not Roddenberry’s, because he’s dead. Not Geisel’s, because he’s dead too.

What expense? When somebody buys “Oh, The Places You’ll Boldly Go!” they don’t think “Oh well this book is now exactly functionally equivalent to both “Oh, The Places You’ll Go!” and all three seasons of ST:TOS, so I need no longer purchase either of those things”. That’s absurd, and you know it’s absurd.

That’s true! Because neither Seuss nor TOS Trek are in the public domain. (Now, I think they should be, but that’s a different discussion.) Public domain is irrelevant to this discussion, though, because nobody is claiming Seuss or TOS Trek to be public domain, and the legal status of “Oh, The Places You’ll Boldly Go!” has nothing to do with public domain. It’s fair use. Fair use is also real, and also good, and this is exactly how it works.


#19

Just out of curiosity, have you actually read the full work, so you can knowledgeably dispute the judge’s decision?


#20

(though who knows: the court has been terrible on copyright, and Ruth Bader Ginsburg never met an expansive theory of copyright she didn’t like).

Sigh. When it comes to copyright, Sandra Day O’Conner is missed. She wrote the opinion in Feist vs. Rural Telephone, and important case limiting copyright.


#21

Remind me never to show you any sort of parody. Never ever. You wouldn’t understand, and only get mad. And still be wrong, so why cause the both of us the grief?