A copy of the children

Oh, where does the Seuss-Star Trek copyright battle go next? To a jury.

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(Reuters) – A San Diego federal court has denied Dr. Seuss Enterprises’ request for a pre-trial summary judgment ruling that the makers of Dr. Seuss/”Star Trek” mashup book “Oh, the Places You’ll Boldly Go!” infringed its copyrights.

The question of whether the mashup’s “total concept and feel” is similar enough to Seuss’ works to show infringement should be left to a jury, U.S. District Judge Janis Sammartino ruled Monday.

The ruling follows the 9th U.S. Circuit Court of Appeals’ December opinion finding that ComicMix LLC and former ‘Star Trek’ writer David Gerald didn’t make fair use of Seuss’ work, in a case that was closely watched as a test of the fair use doctrine’s limits.

Seuss Enterprises and its attorney Tamar Duvdevani of DLA Piper didn’t immediately respond to a request for comment. Neither did ComicMix nor its attorney Dan Booth of Dan Booth Law.

Seuss Enterprises sued ComicMix, Gerald, and others in 2016, alleging their book infringed its copyrights by using several protected elements of Seuss’ works like settings, drawings, characters, prose and themes. Sammartino found in 2019 that the mashup made fair use of Seuss’ work, and though it “certainly borrowed” from Seuss’ “Oh, the Places You’ll Go!,” “at times liberally – the elements borrowed were always adapted or transformed.”

The 9th Circuit reversed that decision last year. Among other things, U.S. Circuit Judge Margaret McKeown wrote for a three-judge panel that the mashup “took the heart of Dr. Seuss’ works”, wasn’t a parody because it simply juxtaposed Seuss’ works with “Star Trek” elements, and wasn’t otherwise transformative because it didn’t have a different purpose or character from Seuss’ work or add new expression, meaning or messages.

The U.S. Supreme Court rejected ComicMix’s request for review of that decision in June.

Seuss Enterprises asked for summary judgment in the underlying case, arguing that without its fair use defense, ComicMix couldn’t deny that the book copied extensively from Seuss’ works and was substantially similar to their copyright-protected elements.

But Sammartino said the question of whether the works were substantially similar should be left to a jury. Summary judgment grants on the question are rare, and Seuss satisfied the objective “extrinsic” element of the test but not its subjective “intrinsic” element, Sammartino said.

Seuss Enterprises demonstrated that the mashup copied “considerable” concrete parts of its works – ComicMix copied nearly 60% of “Oh, the Places You’ll Boldly Go!” and other elements from other Seuss works – but fact issues remained as to whether the “total concept and feel” of the works were similar enough to find infringement, Sammartino said.

The case is Dr. Seuss Enterprises LP v. ComicMix LLC, U.S. District Court for the Southern District of California, No. 3:16-cv-02779.

For Seuss: Tamar Duvdevani of DLA Piper

For ComicMix: Dan Booth of Dan Booth Law

Read more:

“Oh, the Places You’ll Boldly Go!” dispute won’t go to SCOTUS, justices say

Dr. Seuss’s estate can sue over ‘Star Trek’ ‘mash-up’

Dr. Seuss lawsuit over Star Trek-themed parody is dismissed

Blake Brittain

Blake Brittain reports on intellectual property law, including patents, trademarks, copyrights and trade secrets. Reach him at [email protected]

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