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Fair Use of Dr. Seuss: Oh, the Places You’ll Boldly Go!

We are pleased to share that Booth Sweet LLP has helped our clients ComicMix LLC, Glenn Hauman, David Gerrold, and Ty Templeton prevail in a landmark fair use case, winning summary judgment on all claims.

Our clients prepared a mash-up book called Oh, the Places You’ll Boldly Go!, drawing at once from the Dr. Seuss and Star Trek universes. They ran a successful Kickstarter campaign in July 2016 to cover the initial printing and distribution costs, and planned to publish that fall, until Dr. Seuss Enterprises LP (“DSE”) intervened. DSE demanded they cease all plans for the book, had the Kickstarter campaign page taken down, and ultimately filed suit. DSE alleged that the unpublished book infringed the copyright in five Dr. Seuss books, primarily Oh, the Places You’ll Go!, the trademark in that title, in the typeface of the title on the cover of Oh, the Places You’ll Go!, and a claimed trademark in Dr. Seuss’s illustrative style generally.

On March 12, 2019, after more than two years of litigation, the United States District Court for the Southern District of California (DSE’s home court) gave a learned, thoroughly reasoned decision that strongly affirms the fair use doctrine. District Judge Janis L. Sammartino reaffirmed her earlier findings that Oh, the Places You’ll Boldly Go! is a highly transformative work that takes no more from the Dr. Seuss books than necessary for its purposes. Under those circumstances, she found that DSE could only defeat the fair use defense by demonstrating that publishing the book would be likely to cause market harm to DSE, and she found that it failed to do so, leaving its claims of market harm simply hypothetical.

As for the trademark claims, Judge Sammartino had already found that the First Amendment protected the use of the title of Oh, the Places You’ll Go! in the title of the Defendants’ book. At the summary judgment stage, she determined that there is no such thing as a trademark in an artistic style, and that DSE does not have an enforceable trademark in the typeface used for the title, so the use of a Seussian typeface for Oh, the Places You’ll Boldly Go! is not trademark infringement.

Booth Sweet is thrilled about this decisive, clean sweep victory that sets new legal benchmarks for mashup fair use artists in all media. We look forward to celebrating the book’s much-delayed publication.

Here is the Court’s order.

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