Popehat Signal: Help Defend A Seuss-Trek Parody Under Fair Use

New Popehat Signal courtesy of Nigel Lew.  Thanks, Nigel!

New Popehat Signal courtesy of Nigel Lew. Thanks, Nigel!

It's time to light the Popehat Signal to seek pro bono legal help to defend the weak against the strong.

The strong party in this case is Dr. Seuss Enterprises, L.P., which holds the intellectual property of the late Theodor Seuss Geisel, better known as Dr. Seuss. Seuss Enterprises is represented by megafirm DLA Piper, practiced sender of threatening letters.

The weak party is a team that put together a Kickstarter for a Seuss-Trek parody. Writer, editor and illustrator Glenn Hauman put the team together through his company ComicMixLLC. He brought together science fiction writer David Gerrold, who is personally responsible for both tribbles AND Sleestacks, and Ty Templeton, an experienced comic book artist. The concept — a a Star Trek parody called "Oh, The Places You'll Boldly Go" — looked brilliant and delightful:

Gorn

But DLA Piper sent a threat letter on behalf of Seuss Enterprises and Kickstarter took the page down and froze the money they made, and Seuss Enterprises continues to threaten a lawsuit.

The key issue here is Fair Use. Fair Use is a defense to copyright infringement. It applies when you quote a column to criticize it, or post a picture to report on it, or invoke the language and characters of a work to satirize it. It has good and bad aspects. The good: its protection for criticism, comment, satire, and parody is quite broad. The bad: its key elements are subjective and lack bright lines. That means it is rarely possible to use the Fair Use defense to get out of litigation early; usually you've got to litigate all the way to summary judgment or even trial. That's financially ruinous, exhausting, stressful, and life-consuming.

I believe this project is protected by Fair Use. Under the first relevant factor, it's "transformative," in that it adds a new message or meaning to Dr. Seuss's work. It doesn't merely offer a Star Trek episode in Dr. Seuss style; rather, it uses the style to comment on and contrast the Stark Trek and Seuss sensibilities and styles. With respect to the "substantiality" factor, the parody only uses Seuss's recognizable and oft-parodied style; it does not copy actual art or story lines. With respect to the last factor, the work doesn't harm the market for Seuss's work. In other words, people won't buy less Seuss because they bought this parody.

But I don't decree the outcomes of cases, yet. Seuss Enterprises will continue to use a large team of very capable and well-supported lawyers to threaten the authors here, shut down their Kickstarter, and very likely sue them unless they abandon their work. The authors don't have access to the frozen Kickstarter funds and are not in a position to spend what it takes to go up against DLA Piper. Absent intervention, this case will be determined not on its merits, but by raw power — one side has money to bury the other side.

That's not right. This case — the case of a delightful and inventive Trek/Seuss parody that fans will enjoy — ought to be determined through a fair and neutral application of Fair Use principles, not by rout and default.

We can't fix every unfair case. But you can help fix this one. Are you an attorney who practices copyright law? Are you willing to step up and offer pro bono help in a fun, geeky Fair Use case to protect parody from money? Then please consider reaching out, the more of you the better. These guys need help. If you like the Kickstarter model, if you like creative people putting together amazing teams like this and providing entertainment through satire, people need to step up to preserve it. If you're interested, drop me a line at ken at popehat etc.

Last 5 posts by Ken White

Comments

  1. Peter Harris says

    I can't even think why anyone would not want this to exist.

    Is there a stronger defence than fair use, e.g. non-infringement? If none of the text or art is literally copied, what's the plaintiff's actual claim?

    I realise I am very naive about these things, and also, that it could cost a lot of money before anyone gets to ask that question.

  2. SG says

    Gerrold knew the risks before he went into this. He even intimated on the Kickstarter page that he'd use donor funds to fight the lawsuit if it came. While he did write a Trek episode he certainly doesn't own that story and has walked a fine line trading off that fame for years. The Seuss family on the other hand will not want to see their brand diluted by this work. It could be too easily confused with official works.

    The bottom line is Gerrold should defend himself or let the project die. Please don't help him.

  3. SJE says

    I do not like this infringement suit
    the plaintiffs seek to extract loot
    I do not like it near or far
    I do not like it at bench or bar
    I do not like it this silly crap
    But do hope for wondrous SLAPP

  4. Seuss Fan says

    You can not write this book, you see
    You cant not take from that IP
    You can not write it No siree!
    You can not write it, it belongs to The-o

    "But I wrote Trek! I was a cog"
    You claim, explain and demagogue
    "The fans own Trek" your monologue
    Yet then you claim in this fight you have "No Dog"

    About copyrights, parody and rights you quibble
    On your words your clueless fans chew and nibble
    They rant and rave, they drool and dribble
    But you're only claim to fame is still just a Tribble

  5. Shawn O'Halloran says

    You believe its fair use? You would be mistaken. It's intellectual property theft and they came right out in their campaign and acknowledged that they were poking the bear to get sued.

    David Gerrold is a blatant IP theft who supports other blatant IP thieves such as Alec Peters, the con-man currently being sued by CBS/Paramount who milked Star Trek fans out of $1.5 million to produce a "professional independent Star Trek film" but instead used the funds to pay himself a salary, spend it on himself and his friends to support a lavish lfestyle, build a for-profit studio and start a business that has sold over $100K in unlicensed Star Trek merchandise.

    Gerrold has been involved intimately with Peters despite his claims to the contrary. That's who Gerrold is and that's what he supports.

    The fact that your understanding of what fair use is limited and think this is a cute project doesn't change the fact that Gerrold has infringed, has a history of supporting infringement and very specifically telegraphed his intentions to infringe.

    What would be great would be if people like Gerrold and Peters actually had some talent and could produce something original that people wanted instead of ripping off everyone else's intellectual property.

    Oh, and another thing, since you're obviously not caught up on all the details…

    Not only did Gerrold make clear that he intended to infringe and expected to be sued by the respective IP owners, he also made it clear that he was going to use donor funds to defend himself in court. That's right in the crowdfunding campaign.

    So, that's basically what this whole crowdfunding project is; the David Gerrold legal defense fund to validate his intellectual property theft disguising itself as a campaign to make a children's book.

    He doesn't need your help. He got all the help he needed from the dopes who donated to this project.

  6. AceGary9 says

    You can cry "fair use" all you want here. I don't see it. I don't think a court will see it either. It's not saying anything. It's not commenting on the original. It's just straight telling a Star Trek story in the art and rhyming style of Seuss. It's honestly bereft of anything original at all. You can't even call it transformative. It's not transforming anything except making Seuss characters into Star Trek characters. Basically replacing one IP with another.

    What I do see is David Gerrold who is a chronic thief. The guy's biggest claim to fame is a story directly ripped off of Heinlein's Rolling Stones. What Gerrold didn't steal was written by Gene Coon. He's Axanar's biggest champion, which also tells you everything you need to know. You could almost see this as Gerrold's desire to personally battle with CBS over whether Star Trek "belongs to the fans" or not. Except the wrong fish bit.

  7. Morrowind542 says

    I see a whole lot of guilt by association and assertions without evidence in this comment thread, and not a whole lot of substance.

    Is this work fair use? Is it transformative? I have no idea, with neither knowledge of the law or the project. But if the best those saying it's not have got is "this guy knew the studios wouldn't like it" and "this guy supports Axanar", well, the studios should be glad you aren't represtenting them :)

  8. kemn says

    As one of the backers, I hope that folks do step up to help defend this.

    I backed it because I saw it as a parody of both Seuss & Star Trek, and an enjoyable one, at that.

    Despite the naysayers, I believe this project deserves its day in court, not just to be crushed due to lack of financial resources…

  9. Brian Z says

    Quoted from the source that you linked to:

    In addition, if you use the original work in order to create a parody this may qualify as fair use so long as the thrust of the parody is directed toward the original work or its creator.

    You say

    It doesn't merely offer a Star Trek episode in Dr. Seuss style; rather, it uses the style to comment on and contrast the Stark Trek and Seuss sensibilities and styles.

    Since the content of the [uncompleted?] work is unavailable we can only speculate here, but I don't really see where you're going with this. Both Star Trek and Seuss blended familiar touchstones with fantastic technology/creatures/situations in order to celebrate human inquisitiveness and challenge received moralities. What's the contrast and/or commentary?

  10. Aaron G says

    I'm not clever, I'm not smart.
    But can you copyright a type of art?
    Can you own the style of which you write?
    If that's the case then Piper's right.

    The use of Seuss is not so loose.
    You can't make Yertle branded turtle juice.
    But if it looks the same and smells the same.
    Are you playing a fair use game?

  11. Dragoness Eclectic says

    I loved Suess's books as a child. I am sad that a bunch of shills for a holding company for a long-dead author's copyrights is tarnishing his good name. Thanks for ruining my childhood, assholes.

    "intellectual property theft" … ain't no such animal, except in MPAA and RIAA propaganda, and from the gullible fools and corporate shills that swallow it whole. You can't "steal" what doesn't exist: "intellectual property". No one owns ideas or art styles; the only thing you can do is INFRINGE on government-granted limited monopolies. There's reasonable debate about how long that LIMITED monopoly should last, and I personally believe that the lifetime of the author is long enough.

    If, as Ken White posts, the project does not copy the art or story of any of Suess's books, then the suit is meritless legal thuggery, and David Gerrold is a hero who should be applauded for challenging the thugs. He was probably expecting the Star Trek rights-holders to be the censorious thugs, not Suess's. Parodying an art style is very much fair use, contrary to the shrill bleating of the shills. How much is the law firm paying you to post on message boards trying to discourage anyone from making sure the legal case gets a fair hearing? Is it easy to go home to your children at night, and when they ask what you did today, say "I helped beat up someone who couldn't defend themselves! Remember, don't bully other kids at school!"

  12. SJE says

    Some say "a scoundrel is that Gerrold."
    Others see the cause his herald
    of what uses foul or fair
    may be printed, or over air
    his work transmitted.
    Be he guilty or acquitted?
    As this case goes to docket
    We see the price of art, and mock it.

    The passions high, this matter show
    how nerdcore fans become a foe
    and whether mocking, borrow, steal
    the satirist becomes the lawyers meal

  13. AH says

    Are some people in this thread really trying to claim that anything written in anapestic tetrameter is "copyright theft?" Seriously?

    (or does it only become that when you combine it with original drawings?)

  14. IForgetMyName says

    @Shawn O'Halloron:

    very specifically telegraphed his intentions to infringe

    Assuming for the sake of argument that your version of the facts is accurate, that's not true. He very specifically telegraphed his intent to act in a way that would provoke a litigious plaintiff.

    Being prepared for a lawsuit does not mean the lawsuit has merit. If I tweet "James Woods seems like a complete asshat," knowing he will probably sue me, and I tell people that I'm raising funds for the inevitable lawsuit, that is not probative of the validity of James Woods' case–instead, it merely proves that it's widely known what a thin-skinned, litigious asshat Woods is.

    While I wouldn't call the Seuss estate anything as bad as James Woods, their past conduct makes it clear that they 1) are litigious and 2) have an expansive idea of what can be protected by copyright.

    As for everything else you said, it's safe to say you've forfeited the right to be taken seriously on anything IP related. You rely on a parody/satire dichotomy that courts don't buy into all that much. It's still clearly parody even if you're only "loosely targeting" the original work, and you're simultaneous hitting other targets not part of the original work. You think that style and rhyming is something that is "obviously" subject to copyright, when the law is anything but clear about the strength of that sort of copyright claim. Even if it were, I would question the validity of a Seuss copyright since I don't think his rhyming style or his art style could be considered his original works. Your argument seems to largely stem from a strong dislike for the defendant and a superficial, half-accurate understanding of copyright law that would make wikipedia cringe.

    Ken cites factors used by actual courts in actual opinions that are cited as precedent, and argues how he feels the facts weigh in those factors. This makes it easy for someone who thinks he's blatantly wrong–i.e., you–to point out how he's wrong, by contesting specific facts, the validity of case law, or his reasoning in applying one to the other. Can't help but notice you don't do that. For that matter, you don't really articulate what you think is the correct conception of fair use, which makes it hard to criticize you on the merits of your position. But I guess that was the plan.

    Really, the only point you have in your favor is that sometimes, attorneys with your views win, but almost exclusively because they're funded by a plaintiff with deep pockets willing to outspend and outlast a defendant. If Dan Brown went around saying "This guy blatantly stole my IP. He's using original characters in an original setting and an original plot, but everyone says that the heavy-handed way he makes every chapter ending a cliffhanger is 'blatant Dan Brown style,'" I doubt any firm would agree to advance the costs of the case on a contingency agreement.

  15. Cabbage says

    Shawn and Gary, if all they say is accurate, make a compelling case that Gerrold isn't a very original storyteller.

    I don't see why that matters. Assuming Ken is right that there is no art and no storylines being borrowed (and I assume that, in a graphical medium, borrowing "no art" also means borrowing no characters), I'd guess the actual infringements alleged in this suit are:

    – The title, "Oh, the Places You'll Boldly Go" infringes on the title of the Dr Seuss book "Oh, the Places You'll Go"
    – The intent to use Dr Seuss's literary style infringes on Dr Seuss's literary style

    Both of those seems like obviously terrible arguments to me, from a moral/societal perspective, and as I understand the US's Fair Use law it seems like they couldn't possibly hold up legally either.

    Shawn and Gary, since you seem to be insinuating some knowledge of the facts of the case (and care enough about it to argue), would you like to clarify whether there's actually more "infringement" going on here than just the title and literary style? With the Kickstarter page taken down and the infringement notice on Kickstarter providing no information at all about what was allegedly infringing, we've only got Ken's account of the facts to go on; if there are details missing or wrong in there, you'll need to point them out and evidence them in order to persuade anyone.

  16. Gamma Matrix says

    David is clearly trying to make a buck off of both Dr. Suess and Star Trek fans. The IP owners have every right to sue him.

  17. SJE says

    Whatever the legal merits, I fear that the Geisel estate is making a bad business decision. Dr. Seuss is beloved for his wit and humor, and particularly for observations about the bad decisions of adults and business people. Having the estate prosecute parody will undermine that brand.

    Its like Trump suing people for the things they say. Instead of protecting the brand, he comes off thin skinned and cranky and it provokes more investigations that uncover new information about him. Rather than his brand being boosted by his POTUS run, it is being destroyed to the extent that he has to rename his properties.

    (PS: I am an IP lawyer, and I happen to love Dr. Suess. I can't afford the extremely rare originals that come on the market, but I do have an authorized limited edition print of sneetches, which cost a pretty penny).

    PPS: anapestic tetrameter sounds nasty, but at least its curable.

  18. says

    Sounds like fair use to me. Both Star Trek and Dr. Seuss books are established cultural icons and therefore legitimate subjects for parody (which I assume would be gentle). And if David Gerrold is such a talentless hack, why is the highly respected Magazine of Fantasy & Science Fiction (Stephen King's "gold standard" for American short fiction), devoting a special edition to his writing?

  19. New World Universe says

    Ken White, I am artist, technical designer, writer, and I am working on a parody piece myself. I truly applaud the stance you've taken with this issue. It seems IP holders of late have become highly over-protective, and have used bullying tactics to steamroll over the little guy into sniffling creativity. I do believe their work is very creative. Has anyone though of such a great original mash-up before? Creativity stems from the influence of others before them, both in art and technology. Those who don't understand that, do not understand what it is to be an innovator/creator.

  20. En Passant says

    AceGary9 says October 26, 2016 at 9:36 am :

    You can cry "fair use" all you want here. I don't see it. I don't think a court will see it either. It's not saying anything. It's not commenting on the original. It's just straight telling a Star Trek story in the art and rhyming style of Seuss.

    You cannot copyright or patent a poetic meter or rhyme scheme. You cannot copyright or patent a general story subject or structure. You cannot copyright or patent a "style".

    Seuss often wrote rhyming couplets in iambic tetrameter, as in

    I do not like green eggs and ham.
    I do not like them, Sam-I-am..

    His particular strings of words can be subject to copyright. But not his rhyme scheme or meter.

    Otherwise, several delightful comments here would be subject to copyright claims. Thanks, SJE and Aaron G!

    And Dr. Seuss (Green Eggs and Ham) would have been subject to copyright claims by the estate of Charles Lutwidge Dodgson (Jabberwocky) for infringing rhyme scheme and meter.

    If general story structures and organization were subject to copyright, then Dylan Thomas (Portrait of the Artist as a Young Dog) would have been subject to copyright claims from James Joyce (A Portrait of the Artist as a Young Man).

  21. Kent Hutchings says

    Dear Ken,

    When you say "science fiction writer David Gerrold, who is personally responsible for both tribbles…," you may be revealing that you are considerably younger than me. I believe Robert Heinlein invented tribbles (which he also called "flat cats") to serve as a comedic element in "Rolling Stones" (1952), a book I read a few years after its publication. The original Star Trek devoted an episode to tribbles nearly (?) two decades later. I was so disappointed by the poor quality of this "borrowing" that I have not watched any Star Trek TV episode or movie since.

  22. Kent Hutchings says

    Upon reflection, I think I should have added the following:

    I believe using existing literary characters in completely different plots is "fair use." I believe there is (or at least should be) no legal issue with David Gerrold re-purposing tribbles or any other literary characters. Robert Heinlein, who lived for decades after the horrendous "Trouble with Tribbles" Star Trek episode, didn't sue. Heck, he may have even been flattered.

  23. Noah Callaway says

    @Shawn O'Halloran

    You believe its fair use? You would be mistaken. It's intellectual property theft

    Ken does believe it's fair use. He also backs that up by citing the existing precedent on Fair Use, and examining the work under the four factors.

    You assert it's not fair use. Yet you have no such analysis. So, rather than just blindly asserting that Ken is wrong in this instance, would you care to tell us why he's mistaken? Since you don't outline any reasoning or present any arguments for this assertion it smells an awful lot like bullshit.

    He doesn't need your help. He got all the help he needed from the dopes who donated to this project.

    I guess you skipped the part where the Kickstarter funds were frozen?

    —-

    Ken, thanks for posting these. Every time I see the Popehat Signal I feel a twinge of sadness that I pursued a computer science education instead of a legal education. Thanks for doing what you do, and helping others get involved!

  24. Brian Z says

    Anyone want to give money to my movie's Kickstarter campaign? Harry Potter meets the characters from Friends.

    It's okay because they're cultural icons. And I'm a fan so really those characters belong to me because I like them so much. And it's parody because it'll be really funny. And it's transformative because Friends doesn't have magic. And it's non-commercial because I'm not a Big Evil Corporation.

    If you try to tell me I'm wrong then you're trying to stifle my creativity; I'm a really innovative artist and entrepreneur. And isn't passion more important than dumb boring laws about "intellectual property," which really doesn't exist anyway.

  25. AH says

    It's generally accepted that the "borrowing" was unintentional, and when it was brought to Gerrold's attention (before it aired, I think), he happily fulfilled Heinlein request (which was a autographed copy of the script). Allegedly Heinlein sent a note which clarified he "felt the analogy to my flat cats was mild enough to be of no importance"

    It does show the difference between this litigious asshats and someone with class though.

  26. GeoffreyK says

    @Brian Z:
    If the project were "Star Trek: Wrath of The Cat In The Hat", you might be making something approaching a criticism…

    As it is, you're way off-target.

    @popehat:
    "…, yet"? Really enjoying the idea of Hizzoner Judge White.

  27. Shawn O'Halloran says

    @IForgotMyName

    I think you misunderstood my post.

    I didn't come here to argue for or against the merits of fair use, because that would be pointless for someone who has so blatantly misstated it.

    Sure, if I really cared that much I could go down the long list of relevant caselaw and other primary and secondary authorities that completely dispute his position but I really don't care that much. This blog post was just a passing distraction over my morning coffee and I can put my $800/month WestLaw subscription to much better use than responding to blogs.

    Ken cited nothing but a poorly understood layman's position on the subject leaving a ton out (which is kinda shocking considering that he is an attorney) and it really wasn't worthy of that much commentary other than pointing out how wrong it is. I'll leave it to other professionals to tear apart his post.

    No, the whole point of my commentary was to paint a more accurate picture of this case, who the player is and why people should do a little more research before they pick the wrong horse to back.

    Just glancing at this again, there are two blatant errors and the first one, you'd think Super Lawyer who defended the King of Copyright Trolls should probably know:

    1.) Parody and satire are not the same thing and he cites satire as a grounds for protection under fair use; it is not. Only parody is protected.

    2.) "With respect to the "substantiality" factor, the parody only uses Seuss's recognizable and oft-parodied style; it does not copy actual art…"

    ^^^ Wrong and a simple Google image search of "David Gerrold" and "Oh, The Places You'll Boldly Go" would have shown him that the art work directly copies the Seuss artwork.

    And those are just two that don't require a whole bunch of citations.

    I'm pretty sure that the CBS/Paramount vs. Axanar group on Facebook has a whole ton of screencaps of the KS campaign so you don't have to just take my word or Ken White's word for what is in the campaign.

    While you're there, feel free to reach out to the actual IP attorneys that regularly frequent the group.

    As for myself… I've really lost interest in this. The only thing more boring than the blog post is the commentary from the anonymous peanut gallery that know even less about the subject than White, with the exception – of course – of the people who are… y'know… correct (HINT: your soliloquies aside, that would not be you).

    I've said what I have had to say.

    Have a splendid day.

  28. Troutwaxer says

    Ken, when you're talking to David, please tell him to hurry up with the next Chtorr book! It's only been twenty years!

  29. Dabney Newhart says

    @Shawn O'Halloran

    "^^^ Wrong and a simple Google image search of "David Gerrold" and "Oh, The Places You'll Boldly Go" would have shown him that the art work directly copies the Seuss artwork."

    I did the search and see no such thing. Care to link an example, or are you just here to bluster and boast about wasting $800/month?

  30. AceGary9 says

    En Passan, I hate to tell you but you can actually copyright the look and feel of something. What's happening here is more than just style, it's the co-opting of actual faces, poses, and backgrounds. You can't take Mickey Mouse, give him a leather jacket and a mohawk, and call it transformative. You can't take Seuss's very recognizable characters in his style, put them in a Star Trek outfit, and do the same.

    There are two other issues in copyright. Is something so similar that people mistake it for yours? Is something some similar that is waters down your work? I would say, just from the fact that we instantly recognize this as Seuss's work, that this does both. Plus it jumbles it up with another IP altogether that the artist may not want to have anything to do with.

    You also don't really understand the difference between working in the style of and patently copying. I know plenty of people who work in a Seussian style, but you would know it's their work not his. Jack Kirby and Alex Toth worked in the same style, but you could tell their work apart easily. This work is meant to be indistinguishable from Seuss's to the point that I can recognize the exact drawings being referenced at times. This goes back to the first issue in the previous paragraph. Would people mistake this for a real, licensed Suess work if they didn't look close enough? I think the Seuss estate could make that case very easily.

  31. New World Universe says

    @Shawn O'Halloran

    I see a point in your argument Shawn. But I am confused as to what kind of work you do that makes Westlaw relevant. In what capacity do you use it that makes you an authority?

    Not meant as an attack of your qualifications. Just would like to know your basis of knowledge before falling in line into your way of thinking. Thank you.

  32. Norahc says

    Can some of the internet lawyers in these comments explain exactly what code the charge of "intellectual property theft" is? I tried Lawbot but it was more interested in my anus.

    Seems like theft would imply criminal charges, or would that be too much to ask of our legal system?

  33. Dabney Newhart says

    Gary,

    You might have a point if they just put a gold command tunic on The Cat In The Hat, or put pointed ears on the Lorax. But that's not what they did, from the artwork I've seen.

  34. En Passant says

    AceGary9 says October 26, 2016 at 4:18 pm:

    En Passan, I hate to tell you but you can actually copyright the look and feel of something. What's happening here is more than just style, it's the co-opting of actual faces, poses, and backgrounds.

    I said you can't copyright style, whether it is style of rhyme and rhythm, or style of visual art; and you can't copyright a general story line.

    That was in response to your statement:

    It's just straight telling a Star Trek story in the art and rhyming style of Seuss

    Now you are saying something "more than just style" has been copied.

    Maybe something more has been copied here, or maybe not. But "more than just style" was not what I addressed.

  35. Justin S. says

    En Passan, I hate to tell you but you can actually copyright the look and feel of something.

    No, you can't. "Look and feel" is protected by trade dress, and is covered by the Lanham Act, which defines its own criteria to be evaluated to determine infringement. I refer you to an article titled Can a Website's "Look and Feel" be Protected via a Trade Dress Claim under the Lanham Act? on the Holland & Knight website for details.

    What's happening here is more than just style, it's the co-opting of actual faces, poses, and backgrounds.

    While I don't know about backgrounds, Leibovitz v. Paramount Pictures Corp., 137 F.3d 109 (2d Cir. N.Y. 1998) concluded that pasting Leslie Nielsen's face into the body of a pregnant woman, in parody of "a famous photograph taken by Annie Leibovitz of the actress Demi Moore for the cover of Vanity Fair magazine," was fair use. That was very much an issue of pose, though the face 'belonged' to Paramount. With regard to faces, however…

    You can't take Mickey Mouse, give him a leather jacket and a mohawk, and call it transformative.

    That may be literally true, but I think you misunderstand– or maybe you're deliberately oversimplifying and/or misleading– what "transformative" means with respect to parody, and whether that is most or all of what is being (or proposed to be) done with the disputed work.

    Also, I refer you to episode 13.1 of South Park, titled The Ring, which features around ten minutes of Mickey Mouse, one of (if not the) most protected properties in the world.

    You can't take Seuss's very recognizable characters in his style, put them in a Star Trek outfit, and do the same.

    Says you. Fortunately, courts have a process to determine whether something is fair use; they don't have to rely on your opinion of the matter. But while we're at it, which characters have they allegedly misappropriated?

    As I haven't seen the screen-caps of the Kickstarter page, I have no reply for the rest of your comment.

  36. Dusty says

    @Dragoness Eclectic: Where did you get your knowledge of copyright from? Tinkerbell? What you said was complete nonsense.

  37. Dusty says

    @Troutwaxer: Why indeed doesn't Gerrold do a new Chtorr book instead of this? It would be better for him to do so.

  38. Name Withheld says

    @Dusty – could you possibly elaborate on which parts were nonsense? Drive-bys are nice in movies and the evening news, but don't really advance the discussion.

  39. Dave Richie says

    If you intend to profit from this, then you are, in fact, stealing the property of the owners.. ie: the idea of the characters themselves. It's not like you are posting an opinion piece or news story once or twice, you are openly stating you want to make a series out of this. This isn't satire in itself, you are trying to ride on the shirt tail of the IP owners characters.
    If you really are innocent and only want the world to enjoy your ideals and art, come up with your own characters. Occasional references would be one thing, but even to me (someone who openly despises some of the IP laws and the legal system it revolves around), even I see this as theft.

  40. Dragoness Eclectic says

    @Shawn O'Shill:

    Classic troll technique; "Oh, I have all the credentials and arguments to just crush you utterly, but I can't be bothered." I bet the lurkers support you in e-mail, too.

    @Dusty the Shill:

    [Citation Needed]

    To the rest of the shill "arguments":

    Trying ad hominem and "guilt by association" smears of David Gerrold by whining that "he supports Axanar" is really unimpressive. I happen to like the idea of the Axanar film. The copyright suit arguments for damages on that suit are really stupid–fan efforts are generally known for raising interest in the brand, not lowering it. Fans are insatiable; one fan film isn't going to ruin the appetite for official films and TV series, it will just feed it.

    Unless CBS et al. already know the TV series and film are going to suck like the Star Wars prequels. Then they might have something to worry about.

    Given the shills' obsession with Axanar, I revise my guess: they aren't working for the Seuss estate lawyers, they're working for CBS et al.'s lawyers. Nice job you got there, trying to discourage a fair legal hearing. I guess your masters have already figured out they can't win the case on the merits, so they're trying to financially exhaust their victim into giving up, because that's the only possible reason for attacking even attempts to get a fair legal hearing. Thanks for confirming you're completely in the wrong and Ken White is right.

  41. Malakyp says

    My opinions on Gerrold notwithstanding, I rather hope that he and his win this case, because the nearest precedent was, in my opinion, incorrectly decided.

    That precedent is Dr.Seuss Enterprises v. Penguin Books USA, a case which determined that a Dr. Seuss-style book about the OJ Simpson murder infringed on various copyright and trademark protections. For example, the opening lines of One fish two fish red fish blue fish were replaced with "One knife?/Two knife?/Red knife/Dead wife." The court deemed that to be copyright infringement: "…Dr. Seuss's choices as to stanza type (tercet), rhyme (masculine perfect), assonance, and accent are all protectable and all appropriated."

    Furthermore, regarding the art, the court deemed that individual stylistic elements receive their own copyright protections. That is to say, copyright infringement occurs well before duplication of a recognizable Seuss character, so long as discrete artistic elements are shared: "The eyes are closed, inverted semi-circles; eyelashes are depicted in each with a few simple downward strokes. The ears are rounded with a single cavity. The feet slope unnaturally long and flat." So, to those saying that "style" infringement would require Lanham Act claims, well… that's not what happened the last time the Seuss estate sued a satirist. Instead, the court determined that borrowing the style of copyrighted verse or artwork throughout a comparable work fulfills the substantiality prong, even if no single character were substantially copied.

    And of course, we have Campbell v. Acuff-Rose Music (in part, anyway) as a counter-argument against fair use claims here: "[P]arody may qualify as fair use only if it draws upon the original composition to make humorous or ironic commentary about that same composition" (emphasis mine). Fair use does not protect satire, or if it does, it does so to a much lesser degree.

    Now, I think Dr.Seuss Enterprises v. Penguin Books USA was wrongly decided, at least in part (use of the striped hat from Cat in the Hat raises more specific copyright and trademark claims), and that artistic style and literary voice are not sufficiently specific elements for copyright to attach. I'd be happy to see this section of copyright law clarified (or, if this suit proceeds in a different jurisdiction, that the issue at least be decided differently elsewhere), but I'm not particularly hopeful.

  42. kmc says

    @SJE I could be (and probably am) totally wrong, but aren't organizations like the Seuss Estate pretty much obligated to go after cases like this, in order to set a precedent in case of future problems that might arise? I remember hearing a lot of not-lawyers bather about that when Bethesda went after Notch because his game "Scrolls" could be mixed up with "Elder Scrolls". Everybody thought it was dumb, but some voices were saying that, if an organization isn't at least a little trigger-happy on infringement lawsuits, that can possibly work against them if they try to bring one in the future. I've got all the keywords in there that pretty much guarantee I'm wrong, but that argument always did make some sense to me.

    This is a case where I would be surprised if there weren't a lawsuit. Not only do I not know about the legal background, but I actually don't know which side I think is in the right. In general, I would love to say the creators should win because it's an awesome idea and I want it to exist. But on the other hand, there are plenty of things like that, and if the creators weren't planning on using it to make a profit, I would have no doubts that they should win. But they're not just using the quality of the writing and/or the artwork to sell their product; they're actually trading on the goodwill of the fans of Star Trek and Dr. Seuss. Obviously, that's not a legal argument, but if it were me, I would be very uncomfortable providing it for sale. Making it available at-cost on a platform like CreateSpace would be one thing. I do see the parody argument, although I don't see precisely what comment they're making on the original work, other than "We all love this." Our kids have a Star Trek Opposites and a Star Wars Counting book, and those feel like a similar type of parody, in which the original content is put into the surprising and absurd context of a typical baby's board book, but those were both sold under legal licensing from the IP holders. Maybe if the Kickstarter campaign contributions were designed to cover production costs and Kickstarter's cut, and then any further money would be donated to the Seuss or Roddenberry estates or something, that could work. But nothing on Kickstarter is ever funded to the dollar, so you have to assume that, if you get funded, you're going to have at least some money on your hands that you haven't already assigned, which means that you can't pretend Kickstarter isn't for making a profit off of the sale of a product.

  43. En Passant says

    Malakyp says October 27, 2016 at 7:04 am:

    Now, I think Dr.Seuss Enterprises v. Penguin Books USA was wrongly decided, at least in part …, and that artistic style and literary voice are not sufficiently specific elements for copyright to attach. …

    Applied retrospectively to historical works and authors long dead (as a hypo, since it can't happen for reasons too numerous to mention), copyright attaching to artistic style and literary voice could create a monumental circus, or tragedy, involving some of the most highly regarded figures in western culture.

    I would invest in the beer, wine and cheese concession for the singalong and legal seminar on the copyright infringement case of Estate of Robert Burns v. James Clerk Maxwell.

    Burns:

    Comin thro the rye

    O, Jenny's a' weet, poor body,
    Jenny's seldom dry;
    She draigl't a' her petticoattie
    Comin thro' the rye.

    Gin a body meet a body
    Comin thro the rye,
    Gin a body kiss a body,
    Need a body cry?

    Gin a body meet a body
    Comin thro the glen,
    Gin a body kiss a body,
    Need the warld ken?

    Maxwell:

    Rigid Body Sings

    Gin a body meet a body
    Flyin' through the air.
    Gin a body hit a body,
    Will it fly? And where?

    Ilka impact has its measure,
    Ne'er a ane hae I,
    Yet a' the lads they measure me,
    Or, at least they try.

    Gin a body meet a body
    Altogether free,
    How they travel afterwards
    We do not always see.

    Ilka problem has its method
    By analytics high;
    For me, I ken na ane o' them,
    But what the waur am I?

  44. Brian Z says

    Here's a nice article that compares and contrasts Steinberg v. Columbia Pictures Industries, Inc. and Leibovitz v. Paramount Picture Corp.

    Steinberg v. Columbia Pictures Industries, Inc. became a precedent case for when fair use did not apply and when parody was not effective. Leibovitz v. Paramount Pictures Corp. became a case for when the images fell under fair use. The distinction between commenting on or criticizing a work and simply copying it became clear.

    Again, I don't see how this Kickstarter project parodies or comments on Dr. Seuss at all. It seems they just ripped off the style and image composition and were hoping to cash in on people shopping for nerd Christmas presents. Compare the actual images. Do a Google images search for "oh the places you'll go" and "oh the places you'll boldly go". Here are some links to the images that may or may not stay alive. (Seuss) (Kickstarter)

  45. Jenora Feuer says

    With regards to 'if an organization isn't at least a little trigger-happy on infringement lawsuits, that can possibly work against them if they try to bring one in the future'… even with regards to trademark dilution (which is the only place I know of where this really applies legally) a lawsuit isn't the only way to deal with it.

    For an alternate approach, look up 'Get a First Life', which was a parody page done of Second Life back in 2007. Linden Labs' response was referred to as a 'Proceed and permitted' letter rather than 'Cease and desist'; they pointed out that they recognized this as parody, thought it was well done, and while the reworked version of the Second Life logo used verged on trademark infringement, they were officially granting the creator a limited licence to use his modified logo.

    This was a case where the company being infringed acted in such a way that the parody was explicitly allowed, without potentially cutting off the chance to actually sue other people who did similar things; they also bought themselves a whole lot of good will on the Internet in the process.

  46. Justin S. says

    Furthermore, regarding the art, the court deemed that individual stylistic elements receive their own copyright protections.

    I do not see how you came to that conclusion, especially when the District Court stated

    Penguin's book mimics the illustration and rhyming style of Dr. Seuss. Although these elements are not copyrightable, they are relevant to whether copying took place. Beyond these general similarities, the similarities of protected expression detailed in subsections 1(a) and (b), above, further support the conclusion of copying.

    Sections 1(a) and (b) involved literal copying (with minor modifications) of text and art, though 1(a) did go further in claiming that the written style as a whole was protected by copyright. I am not at all certain the decision to extend protection to those elements was correct.

    I fully agree that Seuss v. Penguin was badly decided. More than that, I think entirely too much deference is paid to it, as it never went to trial (at least, I can't find a record of it). The decision was only for a preliminary injunction, decided on by the judge alone as having a strong likelihood of being tried in favor of the plaintiff. Had the case actually gone to a jury, it may have been decided in favor of the defendant.

  47. AceGary9 says

    @ Justin S. CBS/P is suing Axanar over look and feel right now. Some of the ships in Axanar are not from Star Trek, but look like they could be Star Trek ships. There are many pointed eared characters in the world, but Axanar's look and feel like Vulcans. Axanar, no matter what it is named, look and feels enough like Star Trek that media news outlets have confused its footage with real Star Trek properties. You can quibble over what part of the law covers that, but it is covered.

    The Mickey Mouse in South Park was a genuine parody as was the Leslie Nielson cut and paste. It said something about the original. It did not do it just for the entertainment value of it. The same goes for Mortimer Mouse in Outland. His existence made a statement about Disney and the character he represented. It was not just a matter of sticking the character into a new environment and do whatever. Making Mickey Mouse a Star Trek character says nothing about Mickey Mouse.

    I'm glad you can quote some kind of court case, but that doesn't seem to make you understand those cases, or the law, or the examples you cite.

  48. Name Withheld says

    @AceGary9 – what does this case have to do with Axanar? You and Shawn seem determined that Axanar's relevant, but there's no connection at all beyond the fact that it's Star Trek and David Gerrold happens to support Axanar and is involved in this one. In my understanding of the law, the merits of one have absolutely nothing to do with the merits of the other.

  49. Derrill says

    As a pure lay person, I've also heard that Fair Use is more relevant when the satire/whatever is directed at the originating work.

    I remember years ago, Penny Arcade was doing some comics to make fun of American McGee's Alice in Wonderland thing. Maybe it was that horror game or something? I forget. But they did "American McGee's Strawberry Shortcake", which you can find if you google 'penny arcade strawberry shortcake', and whoever owned Strawberry Shortcake send them a C&D. After consulting with their lawyers, they took it down and said they took it down because it wasn't directed at Strawberry Shortcake, so wouldn't be covered by fair use.

    Everything I "know" about fair use comes from that incident. I sure wish I knew enough to know that what I "know" is right or wrong :)

    It seems somewhat logical that fair use would require the work be directed back at the original work, I guess.

  50. Al says

    I could understand the owners of Star Trek being mildly peeved about this. The Seuss estate has nothing approaching a valid claim, and dishonors the memory of a great author.

  51. Justin S. says

    CBS/P is suing Axanar over look and feel right now. Some of the ships in Axanar are not from Star Trek, but look like they could be Star Trek ships.

    Has CBS/Paramount prevailed in their lawsuit? No? Then there's less than nothing to talk about– it's a vacuum, void of anything at all.

    The Mickey Mouse in South Park was a genuine parody as was the Leslie Nielson cut and paste. It said something about the original. It did not do it just for the entertainment value of it.

    Have you seen the completed work by Gerrold et al, or only some bits on Kickstarter? Unless you've seen the completed work, you're not in a position to make statements about the merits of that work with respect to fair use, or at least not statements that should be taken seriously.

    With regards to Mickey and Neilsen, my point in referencing them was to rebut your oversimplified, and factually incorrect, assertions. Whether they apply to Gerrold's work is irrelevant.

  52. AceGary9 says

    @Justin S.

    Justin, all you're proving here is that you have no idea what you're talking about. You cite example after irrelevant example and when those examples are challenged you cry "we just don't know enough to form an opinion". And yet you have formed an opinion. You just don't want me to have mine. What a way to make your point.

  53. says

    @Shawn O'Halloran:

    Don't you have to be at the gym in 26 minutes?

    @Ken:

    I would like to forward this to specific friends if they are in the appropriate jurisdiction. Can you share where?

  54. IForgetMyName says

    @ Shawn,

    I think you misunderstood my post.

    I didn't come here to argue for or against the merits of fair use, because that would be pointless for someone who has so blatantly misstated it.

    No, you just came by to spend a lot of words and a lot of time condescendingly telling Ken that he's so wrong that it's not worth taking the time to tell him how wrong it is.

    This blog post was just a passing distraction over my morning coffee and I can put my $800/month WestLaw subscription to much better use than responding to blogs.

    You have an $800/month unlimited use Westlaw subscription? Damn son, we were getting ripped off on our usage based subscription–even in nominal dollars unadjusted for inflation.

    Also, I don't know what your definition of "obviously wrong" is, but for me something is only obviously wrong if can at least generally articulate why it's wrong without relying on outside research. [citation: any dictionary definition of the word "obviously."]

    1.) Parody and satire are not the same thing and he cites satire as a grounds for protection under fair use; it is not. Only parody is protected.

    No, they're not, but they're also not mutually exclusive. And as I alluded to in my previous comment, the fact that a work is a satire directed against a target other than the original work doesn't mean that it isn't also a parody targetting the original work. (Not remotely close to the language used in any opinions, but considering your clear disdain towards effort, I don't see the point of looking up something I read last year.)

    As for myself… I've really lost interest in this. The only thing more boring than the blog post is the commentary from the anonymous peanut gallery that know even less about the subject than White, with the exception – of course – of the people who are… y'know… correct (HINT: your soliloquies aside, that would not be you).

    Ha, fair point. I do tend to drone on sometimes. Tremendously hypocritical coming from you, but still a fair point.

    I've said what I have had to say.

    Have a splendid day.

    No real response here, just thought I'd highlight you being an obnoxious, passive aggressive tool.

  55. IForgetMyName says

    @En Passant:

    Applied retrospectively to historical works and authors long dead (as a hypo, since it can't happen for reasons too numerous to mention), copyright attaching to artistic style and literary voice could create a monumental circus, or tragedy, involving some of the most highly regarded figures in western culture.

    Although I think much of the potential copyright thicket would be limited even by today's tremendously long copyright terms, you raise an interesting point. When you look at the history of technological development from before the development of any sort of patent law, you can't help but think how much that development might have been disrupted by imposing today's laws. When we debate IP laws, we tend to take for granted the fact that so many important developments occurred before those laws existed.

  56. Justafan says

    As for myself… I've really lost interest in this. The only thing more boring than the blog post is the commentary from the anonymous peanut gallery that know even less about the subject than White, with the exception – of course – of the people who are… y'know… correct (HINT: your soliloquies aside, that would not be you).

    Disingenuous words coming from someone who is prodigious in posting long diatribes on every article, post, podcast or news item that is neutral or positive toward Axanar. And indeed other similar articles that you feel can be linked to that production's lawsuit through any thinly, overstretched reasoning. There is more schadenfreude about you than any real authenticity to debating the legal aspects of this or the Axanar case.

  57. Name Withheld says

    @MarcRandazza

    OMG! Are you saying that Clinton supports Axanar?!? Or is "David Gerrold" a secret code word for the administration's coverup?!?!?

    Woah if true!

  58. Dan says

    When I was in high school, I wrote a parody (?) of a Dr. Seuss book. It was kind of the opposite of this case: I used the characters and plotline unchanged, but in a different author's distinctive style.

    Would that be fair use? (Hypothetically. This wasn't published or anything.)

  59. Jay says

    It'll be an interesting case to watch. Determining whether something is fair use can be hard, and this cuts closer to the line than I'd feel comfortable making. I suspect it will come down to specifics of how closely the text and illustrations mirror the original.

  60. SJE says

    @KMC
    A property owner can't sit on his/her rights, lest they be held lost under a laches doctrine. Also, you do need to somehow let it be known that you are not an easy mark, and sometimes that means suing the pants off someone.

    But it doesnt mean that a lawsuit is the only way to do it. Lawsuits are expensive, time consuming, and can damage the brand. Be selective. Sometimes owners want to sue because of their egos (see DJ Trump). Others, lawyers advocate lawsuits because they make more money. I somewhat recently defended a client who was attacked by a well funded competitor who spent a lot of money and ended up losing…actually we ate their lunch and forced them to negotiations at our terms.

    I am NOT saying that this is or is not the case to go in guns blazing. I am not privy to the workings of Seuss Inc. Just saying its not a simple matter.

  61. IForgetMyName says

    @KMC and SJE:

    I think there is some confusion between laches (as applied to copyright law) and the trademark law requirement that you defend your mark.

    SJE is correct that laches applies to copyright cases, but all it means is that you have to act in a timely manner in response to particular acts of infringement. If you wait too long to file suit, the infringer can raise laches as a partial defense that reduces damages. Basically, you can't get damages for any infringement from before the statutory period, because you waited too long to respond to that particular period of infringement. However, you are still entitled to damages with respect to the subsequent period of infringement, and more importantly, you don't waive any of your ultimate rights in the copyright.

    KMC, you might be confusing copyright with trademark law. One aspect of trademark law that I suppose is similar to laches doctrine is that a mark remains valid only so long as it is used and defended. Unlike a copyright, if you stop using a trademark, or you continue to use it but also do absolutely nothing to stop others from blatantly infringing, your trademark can be cancelled. So for trademarks, I can absolutely understand erring on the side of being litigious–instead of losing the right to recover from a specific infringer, you might lose everything you had invested in the trademark forever.

    Of course, the Seuss estate probably also holds a few trademarks in order to control the merchandising, and it's possible that they're worried about them.

  62. En Passant says

    IForgetMyName says October 27, 2016 at 9:32 pm:

    When you look at the history of technological development from before the development of any sort of patent law, you can't help but think how much that development might have been disrupted by imposing today's laws. When we debate IP laws, we tend to take for granted the fact that so many important developments occurred before those laws existed.

    American patent law has existed, with still reasonably limited terms for patents (20 years IIRC), since the founding. Copyright law has also existed since the founding, but recent term extensions are IMHO insane and counterproductive to the law's stated purpose in the Constitution, "To promote the Progress of Science and useful Arts …"

    That said, even with reasonably limited patent terms, patent thickets have occurred which arguably inhibited technological development. Just for example off the top of the head without details (which I'm too lazy to look up), in the 1800s, patent thickets developed around sewing machine, cotton gin, telephone and phonograph technology. In the 1900s some thickets developed around radio and related technologies.

    At least the limited terms for patents prevented those thickets from continuing long enough to grossly impede "the progress of science and useful arts".

    If patent terms were as long as copyright terms, your cell phone could likely not be manufactured and sold without a license from the estates of actress Hedy Lamarr (that's Hedy, not Hedley!) and composer George Antheil, who invented and patented frequency-hopping spread-spectrum technology in the 1940s.

  63. Encinal says

    IForgetMyName

    Also, I don't know what your definition of "obviously wrong" is, but for me something is only obviously wrong if can at least generally articulate why it's wrong without relying on outside research.

    That's odd. You had no problem calling my idea that "malicious prosecution" refers to prosecution that is malicious obviously wrong, and defending that accusation based on outside research.

  64. Encinal says

    @SG

    Gerrold knew the risks before he went into this. He even intimated on the Kickstarter page that he'd use donor funds to fight the lawsuit if it came. While he did write a Trek episode he certainly doesn't own that story and has walked a fine line trading off that fame for years. The Seuss family on the other hand will not want to see their brand diluted by this work. It could be too easily confused with official works.

    The bottom line is Gerrold should defend himself or let the project die. Please don't help him.

    @Shawn O'Halloran

    Not only did Gerrold make clear that he intended to infringe and expected to be sued by the respective IP owners, he also made it clear that he was going to use donor funds to defend himself in court. That's right in the crowdfunding campaign.

    So, that's basically what this whole crowdfunding project is; the David Gerrold legal defense fund to validate his intellectual property theft disguising itself as a campaign to make a children's book.

    He doesn't need your help. He got all the help he needed from the dopes who donated to this project.

    What if people had applied this sort of logic to the Scopes trial, or Rosa Parks? "Rosa Parks went into this intending to get arrested. Please don't help her." If you think that the cause is not worthy, then you should argue for why the cause is unworthy. Arguing that we should not help someone fighting a cause, because they intended to fight that cause, is astoundingly idiotic line of argument.

  65. Cromulent Bloviator says

    Not only Benghazi, but I believe Gerrold killed both Tasha Yar and David Marcus. Furthermore, witness reports indicate that Lt. Van Mayter's death may not have been an accident, because Gerrold was seen escaping through a nearby hatch carrying a portable gravity generator.

  66. spinetingler says

    If the project were "Star Trek: Wrath of The Cat In The Hat", you might be making something approaching a criticism…

    If the project were "Star Trek: Wrath of The Cat In The Hat", I might be making something approaching a donation.

  67. says

    1. Great thanks to Ken for putting up the PopehatSignal. We have indeed arranged counsel, the wise and wonderful Dan Booth, who posted earlier upstream.

    2. Great thanks to both the supporters and the detractors in this thread. As always, interesting, entertaining, and edifying reading.

    3. We filed our DMCA counter-notification on Friday.

    4. Generally in this matter, I'm going to let my lawyer speak for me and let the finished work (which, except for Ken and Dan, none of you have seen) speak for itself… with the exception of this:

    Troutwaxer & Dusty: you can read the first ten chapters of the next book in the Chtorr series, A Method For Madness, in David's collection Entanglements and Terrors. The full book of AMFM is out with beta readers now.

    We did in fact make reference to this in his bio for the book:

    David Gerrold is one of those gee-whiz-bang writers
    who's written for Star Trek and B5 and Sliders.
    He wrote the Dingilliad, When HARLIE Was One,
    and won Hugos and Nebulas for his Martian son.
    (And really, to answer the question that wearies,
    he promises there's a book 5 in the series.)

  68. says

    Bravo for taking up this case. However, I must point out that using the term "intellectual property" as a synonym for copyright works against our cause. It spreads confusion between copyright law and several other dissimilar laws. When people start out with the false assumption that these laws are similar, that obstructs them from understanding what these laws actually say and do.

    See http://gnu.org/philosophy/not-ipr.html.

    Would it be useful to post the address of Dr. Seuss Enterprises, or perhaps some other entity representing the heirs, for people to send letters saying they should stop dragging the proud name of Dr. Seuss through this mud?

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