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:
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.