Bang ups and hang ups can happen to you... but fair use is still there to help you through!
Star Trek and Dr. Seuss are an unlikely but charming pairing, which is perhaps why a proposed book titled “Oh, The Places You’ll Boldly Go!” caught the attention of both Trekkies and Dr. Seuss aficionados in 2016. Prepared for publication by ComicMix LLC, this playful comic was a mash-up of the Dr. Seuss classic “Oh, the Places You’ll Go!” featuring Star Trek characters and themes. Its Kickstarter page billed Boldly as a parody Star Trek primer in the form of the beloved Dr. Seuss original. When the estate of Dr. Seuss (the holder of the copyright in his books and characters, and the trademarks in his brand) complained to the creators of Boldly about the unauthorized use of Dr. Seuss’ intellectual property, Boldly’s creators pointed to the copyright doctrine of fair use to justify their actions. The estate of Dr. Seuss is well-known for being protective of its valuable copyrights and trademarks, and was not convinced. It sent a copyright notice to Kickstarter, and successfully got the page and funds frozen. From there, it filed an unfair competition, copyright and trademark infringement lawsuit against ComicMix and the creative team behind the new book.
What exactly is fair use and why did ComicMix think that it could rely on it to justify publishing Boldly without getting permission from the estate of Dr. Seuss? Fair use is the unsung hero of students, staff, and faculty alike. It is not just for judges and lawyers; it is a flexible doctrine that can be applied by everybody. Specifically, fair use is a legal doctrine that allows authors of original, creative content to remix, adapt, quote, and incorporate limited amounts of in-copyright text, images, figures, graphs, and articles into a new project without seeking permission from the original copyright-holder. Some projects are more likely to fall under fair use because we as a society value them. For example, borrowing small amounts of an in-copyright work for the purposes of parody, criticism, comment, news reporting, teaching, and scholarship are more likely to be a fair use than remixing a work to create a commercial product that will compete with the original. While fair use is a powerful tool, it is a frequently misunderstood concept in U.S. copyright law and requires some practice to apply thoughtfully.
Initially, ComicMix genuinely thought that Boldly fell under the umbrella of fair use because they believed that Boldly was a parody, which afforded it special protection. When the Kickstarter page for Boldly was launched, ComicMix even included a disclaimer that Boldly was not affiliated with Dr. Seuss, and that the creative team saw the comic as a fair use of Dr. Seuss’ classic book. However, calling something “fair use” does not always make it so.
To determine whether a particular use of a copyrighted work is considered fair, you need to analyze and weigh a number of factors together. These factors include:
- the purpose and character of your proposed use
- the nature of the original work you are borrowing from
- the amount of the original work you are incorporating into your new work
- the effect of your proposed use on the potential market for the work
Legal professionals consider the potential market for the work to be particularly important because it looks at whether an intended use will impact the ability of the copyright-holder to make money from their creation.
It is often considered “fair” to use a copyrighted work for an academic project or for nonprofit scholarship purposes because the purpose and character is educational. However, purpose and character is not the only factor that needs to be examined. If a scholar borrows too much of the original work, or if an academic project impacts the ability of the rights-holder to make money from their work, then the use might not be fair after all. This means that each time you consider quoting, copying, or otherwise remixing a copyrighted work, you must consider all of the fair use factors together, not just one or two alone. This process may seem tedious, but it becomes second nature with practice.
Fair use is meant to be flexible, but with that flexibility comes a degree of uncertainty. For example, there is no magical word count or percentage of a work that you can use without running into trouble. You can only know for sure if a particular use is fair after a federal lawsuit is filed and a judge or a jury side with you. Taking a quick skim of the fair use index available on the U.S. Copyright Office website will give you a taste of how small differences in circumstances can make a big difference in the outcome of a case. This can be maddening or exciting depending on your outlook!
Even courts disagree about how to apply the fair use factors. That is exactly what happened in the case of Boldly. The first time the case was heard, the court agreed with the Boldly creative team and found that their Star Trek-themed riff on Dr. Seuss was a fair use. The court paid special attention to the claim that Boldly was a parody work. To qualify as a parody, the new work must borrow from the original work in order to comment on or criticize it. Here, Boldly failed as a parody because its creative team used the characters from Dr. Seuss and Star Trek to create a funny book, not to comment on Oh, The Places You’ll Go! or the universe of Dr. Seuss. The court’s analysis did not stop there. It went on to consider the other factors, including the amount of Dr. Seuss’ work that was used in the new comic and its effect on the market for Dr. Seuss stories and merchandise. Ultimately, after weighing all the fair use factors, the court found that Boldly was a fair use, even if it was not a parody.
Dr. Seuss’s legal team appealed the lower court’s decision. The appeals court sided with them and found that Boldly was not a fair use after all. In its view, all four of the fair use factors weighed against a finding of fair use. The appeals court found that because Boldly was commercial in nature and was not truly transformative, the purpose and character of Boldly weighed against a finding of fair use. It also considered the nature of Oh, the Places You’ll Go! and found that the original Dr. Seuss work was highly creative and close to what the core of copyright protects. Additionally, it observed that Boldly copied close to 60 percent of the original Dr. Seuss work. Finally, the appeals court recognized that there is currently a thriving commercial licensing market for Dr. Seuss characters and merchandise. It found that typically someone looking to create or sell a Dr. Seuss-themed work would seek a license from the estate ahead of time. On balance, the appeals court found that not a single factor supported the claim that Boldly was a fair use.
This case surprised legal scholars and content-creators alike. It highlights that fair use is flexible but nuanced, and a fresh eye or a different spin on the same facts can have a tremendous impact on the outcome of a case. Regardless of who is “right,” we can all learn a thing or two about U.S. copyright law and fair use from this outcome. If you are preparing to create something based on a copyrighted work, consider all the fair use factors before you begin. Speak with someone whose opinion you respect but who may bring different experience to the table. Argue both sides to see which you find more compelling. Sometimes, you may even have to consult with a legal professional--something ComicMix did not do before launching its fundraising campaign. A little education can help you avoid common fair use pitfalls and determine the best way to employ copyrighted works in teaching, research, and creative projects.
Want to learn more about copyright and fair use? We recommend our guide for authors.
Note: This article is for educational purposes only and is not intended to serve as legal advice.