The Ninth Circuit ruled Friday that a comic book company boldly went too far when it created an original “mashup” comic featuring elements of Dr. Seuss and Star Trek. A three-judge panel ruled that the work is not protected under the fair use doctrine, reviving a copyright infringement case filed by Dr. Seuss’ estate.The appeals court overturned a decision in favor of the company ComicMix in 2019, holding that “Oh, the Places You’ll Boldly Go!” didn’t create a transformative interpretation of the Seuss classic picture book “Oh, the Places You’ll Go!” just by merging it with elements of the iconic sci-fi franchise.

U.S. Circuit Judge Margaret McKeown wrote in the decision for the three-judge panel that ComicMix’s creation will not be permitted to live long and prosper.

“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,” McKeown wrote. The other two judges on the Ninth Circuit panel were N. Randy Smith and Jacqueline Nguyen.

The court ruled that the new book would hurt the Seuss estate’s ability to license authorized spin-offs and other derivative works as well as their ability to sell the original, which are all major factors in weighing fair use.

“The unrestricted and widespread conduct of the sort engaged in by ComicMix could create incentives to pirate intellectual property and disincentivize the creation of illustrated books,” McKeown wrote.

Dr. Seuss Enterprises, which controls the late author’s intellectual property, filed the case against ComicMix in 2016 when the comic publisher revealed plans to launch the so-called mashup. The title of the unauthorized comic is a reference to the Star Trek slogan “To boldly go where no man has gone before,” with the Seuss book “Oh, the Places You’ll Go!” published in 1990.

In 2019, a federal trial judge ruled that the work was protected from a copyrightlawsuit by fair use, holding that it borrowed “at times liberally” from Seuss but still created a transformative work compared to the original material.

But the Ninth Circuit ruled that the new book had placed characters from Star Trek into a “Seussian world that is otherwise unchanged,” and noted that the Star Trek reference to the word “Boldly” did not create a sufficient parody of Seuss, or add any original commentary on the author’s work.

“Crucially, ComicMix does not overcome the fact that Seuss often collaborates with other creators, including in projects that mix different stories and characters,” McKeown wrote. “The unrestricted and widespread conduct of the sort ComicMix is engaged in could result in anyone being able to produce, without Seuss’s permission, Oh the Places Yoda’ll Go!, Oh the Places You’ll Pokemon Go!, Oh the Places You’ll Yada Yada Yada!, and countless other mash-ups.”

However, the court did give ComicMix a little space by rejecting another copyright infringement claim by the Seuss estate over the word “Boldly” in reference to Star Trek.

“Boldly is not explicitly misleading as to its source, though it uses the Seussian font in the cover, the Seussian style of illustrations, and even a title that adds just one word,” McKeown wrote.

The case is Dr. Seuss Enterprises LP v. ComicMix LLC et al., case number 19-55348, in the U.S. Court of Appeals for the Ninth Circuit.Curious about CEB? Please visit our website to learn more about our products, our free webinars and guidebooks, and our public service mission.

© The Regents of the University of California, 2020. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited