(CN) — Just weeks before graduates receive copies of the Dr. Seuss classic “Oh, the Places You’ll Go” as graduation gifts, an attorney for the publisher told a Ninth Circuit panel Monday a Star Trek mash-up of the children’s classic violates copyright law and was created to compete in the graduation gift market.
DLA Piper attorney Stanley Panikowski, representing Dr. Seuss Enterprises in a 2016 copyright dispute over the crowd-sourced Star Trek mash-up “Oh, the Places You’ll Boldly Go,” said the purpose of the reimagined children’s book was “to serve as a market substitute.”
“It’s a purely commercial work that would compete head-to-head with ‘Go,’ especially in the graduation gift market,” Panikowski said via videoconference Monday.
“‘Boldly’ has the same purpose, the same target audience, the same intended sales channels, and even the same substantive message as ‘Go.’ ‘Boldly is just a Star Trek-flavored clone of ‘Go,’” he added.
Dr. Seuss Enterprises challenges summary judgment by U.S. District Judge Janis Sammartino last year in favor of “Oh, the Places You’ll Boldly Go” publisher ComicMix. Sammartino found the Star Trek mash-up fulfilled the fair use provision of the Copyright Act. Panikowski asked the Ninth Circuit to find no fair use by the ComicMix mash-up.
The decision came after Sammartino — a George W. Bush appointee — previously found ComicMix couldn’t dodge the copyright claims.
Every May, the children’s classic shoots to The New York Times’ bestsellers list as parents, family members and well-wishers gift the book, with its message of accomplishing individual success in the face of adversity, to graduates embarking on their careers.
Panikowski argued ComicMix knew its book would serve as a market substitute for gift givers looking to purchase its book for a “Trekkie” graduate instead of the Dr. Seuss book.
He said comments by the ComicMix publisher calling the book “a Star Trek version of the Dr. Seuss classic” were among the “legion” of evidence the publisher “rushed the book to market to capture graduation sales.”
Other mash-ups of Dr. Seuss works had been licensed, Panikowski pointed out, noting the Jim Henson puppet television series “The Wubbulous World of Dr. Seuss” had been licensed.
When U.S. Circuit Judge M. Margaret McKeown, a Bill Clinton appointee, noted there is no bright-line rule for the court to determine if a work complies with the transformative use provision allowable by the Copyright Act, Panikowski said the work was not transformative because it did not criticize or comment on the substance and style of the Dr. Seuss original.
ComicMix attorney Dan Booth disagreed.
“‘Oh, the Places You’ll Boldly Go’ is a creative expressive work that poses no cognizable harm to Dr. Seuss Enterprises,” Booth said.
“Fair use matters to artists and the public because it gives them breathing room to create,” he added.
But McKeown countered that argument, saying: “I’m having a hard time understanding your argument that this is a parody.”
Booth said because “Oh, the Places You’ll Go” is a book heavy on illustrations, rather than text, the parody of the Star Trek mash-up “is much more implicit through the illustration than the text.”
He also argued there is a “different undercurrent” of “Oh, the Places You’ll Boldly Go,” in which its parody is in “constantly pointing out the individualistic and narcissistic character of ‘Oh, the Places You’ll Go.’”
“It’s a universalist theme as opposed to aspiring for the goals of one individual. Star Trek and ‘Boldly’ take on a different approach and shoot for a different ideal, an ideal of universalism, of group support, of communion rather than individuality,” Booth added.
McKeown appeared unconvinced, calling Booth’s argument an “after-the-fact justification” as to why ComicMix chose to parody Dr. Seuss.
She also poked holes in Sammartino’s finding the Star Trek parody was transformative under the Copyright Act.
“The district court’s opinion on fair use is if you take an existing expression and intersperse it with some new expression that all of a sudden you have a transformative work,” McKeown said.
“It would seem to me to sink the whole notion of copyright protection and almost everything would be fair use,” she added.
U.S. Circuit Judges N. Randy Smith, a George W. Bush appointee, and Barack Obama appointee Jacqueline H. Nguyen rounded out the panel. The matter was taken under submission.