No Go for Mash-up of Dr. Seuss Works and Star Trek, Ninth Circuit Says

(December 18, 2020) An attempt to boldly go where no mash-up of Dr. Seuss and Star Trek had gone before was squashed by the Ninth Circuit.

ComicMix LLC created a mash-up using the Star Trek characters and Dr. Seuss’s works Oh, the Places You’ll Go! (“Go!”), How the Grinch Stole Christmas!, and The Sneetches and Other Stories (“Sneetches”). ComicMix argued the work entitled Oh, the Places You’ll Boldly Go! (“Boldly”) was a fair use and not copyright infringement. The trial court granted ComicMix’s motion for summary judgment and the appellate court reversed, noting “[T]he 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.”

ComicMix did not license any material from Dr. Seuss nor did it obtain a license for the use of Star Trek material. Star Trek was not part of the case.

ComicMix did not dispute that it tried to copy portions of Go! as well as portions of the other Dr. Seuss works. In fact, one of the creators said he took about seven hours to copy a single illustration from Sneetches because he “painstakingly attempted to make” the illustration “nearly identical” to its Seussian counterpart. The two illustrations appear below.

As for text, ComicMix created a side-by-side chart comparing the texts of Go! with its Boldly work in order to “match the structure of Go!” the appellate court wrote.

ComicMix argued its use was “fair use.” The appellate court found Boldly was not transformative and was not a parody of Dr. Seuss works. “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.” Go! is the number 1 book on The New York Times best sellers list every year during graduation season.

The Ninth Circuit also found that the quantitative amount of the work taken by Boldly was substantial, copying 14 of Go!’s 24 pages, close to 60 percent of the book. “For each of the highly imaginative illustrations copies by ComicMix, it replicated, as much and as closely as possible from Go!, the exact composition, the particular arrangements of visual components, the swatches of well-known illustrations.”

Boldly was never published. In August 2016, ComicMix started a crowdsourcing campaign on Kickstarter to pay for production and other costs, raising $30,000. The campaign came to the attention of Dr. Seuss, which successfully had the Kickstarter campaign shut down and then filed an action for copyright and trademark infringement. As to the trademark claim, both the trial court and appellate court found the Lanham Act did not apply because the use of the mark was not misleading.

Dr. Seuss Enterprises, L.P. v ComicMix LLC et al., Ninth Cir. No. 19-55348, filed December 18, 2020.