Legal Geek No. 90: How the Dr. Seuss/Star Trek mashup was Killed

Welcome back to Legal Geek. This week, we review a Kickstarter mashup book project involving Star Trek and Dr. Seuss, and whether it properly died on the Kickstarter vine thanks to intellectual property infringement allegations.

https://archive.org/details/LegalGeekEp90

A team of comics and science fiction writers teamed up under the company ComicMix LLC to launch a book project called "Oh The Places You'll Boldly Go," a book about Trekkie characters using Seuss-style rhymes and drawings. The Kickstarter campaign dropped sample rhymes like:

"You can get out of trouble, and that's knotty, because in a pinch you'll be beamed out by Scotty."

The book was in the process of raising nearly $30,000 on Kickstarter in the month of September, and predictably, that raised the hackles of one of the intellectual property owners being parodied. This time, it was the estate of Dr. Seuss, known as Dr. Seuss Enterprises, which objected to this book as a slavish copying of copyrighted works of the author and also as trademark infringement based on a likelihood of confusion with one of Seuss's best selling books, "Oh the Places You'll Go."

Paramount and CBS have not joined the case on behalf of Star Trek's intellectual property. As you'll recall, they are still in their own legal battle we've covered here with a crowdfunded fan film called Axanar.

The lawsuit filed in California did not slip through unnoticed, and powerful lobbying organizations like Popehat called for an attorney in the area to represent the creators of the book pro bono, AKA for free, to defend what many believe to be clear fair use under copyright law.

Fair use as a copyright infringement defense is a four factor balancing test, as we've covered before. Here, there are arguments cutting both ways on some of the factors. Seuss Enterprises believes that this work would undercut a part of the market for their own original works, while ComicMix does not see any harm to Seuss's marketplace. The purpose and character of the use is believed by Seuss Enterprises to be commercial and therefore disfavored, while ComicMix looks at this as a transformative parody work typically protected by fair use. As to the amount or substantiality of the portion of Seuss's work taken, Seuss Enterprises shows some highly similar drawing panels in the complaint, but ComicMix believes it has only used an oft-parodied style rather than lifting any particular story arcs from Seuss or a pre-existing Star Trek episode.

Being a self-proclaimed parody likely balances this test towards fair use instead of infringement, but the facts look close enough to make it an open question whether the fair use defense is available. What may be more damaging is the trademark claim, considering the identical goods of a book, and the highly similar names but for one added word. "Oh The Places You'll Go" has sold well as a graduation present and the like for many decades, and it may indeed be confusing to consumers whether this Trek parody comes from Seuss Enterprises or licensed by such.

The Bottom Line is, while it's admirable to see Popehat and other foundations try to help what looks like an awesome project from a fair use copyright perspective, there may be too many mistakes made here to save this Kickstarter project. Once again, merely approaching the parties for an inexpensive license could have potentially avoided a lot of legal bills, project delay, and frustration.

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