Oh, the Places You'll Boldly Go! Or not.
On December 18, 2020, the U.S. Court of Appeals for the Ninth Circuit held that an unpublished comic book mash-up launching the crew of the Star Trek Enterprise into the world of Dr. Seuss was not fair use under the Copyright Act. Judge McKeown, writing for the 3-judge panel, held that it wasn't even a close call, even though the district court (Sammartino, J.) had reached the opposite conclusion last year when it granted summary judgment for the defendants based on fair use.
The opinion provides a pretty straightforward analysis and application of the four fair use factors of 17 U.S.C. § 107, concluding that all of them weigh "decisively" against a finding of fair use.
Not surprisingly, the most interesting part of the decision is the discussion of whether the mash-up is "transformative" under the standard set by SCOTUS in Campbell v. Acuff-Rose. The court was not persuaded that the "extensive new content" created by the work is enough, holding that "the addition of new expression to an existing work is not a get-out-of-jail-free card that renders the use of the original transformative." Rather than parodying, commenting on, or shedding new light on Dr. Seuss's original, Boldly! merely "repackaged" Go! "into a new format, carrying the story of the Enterprise crew's journey through a strange star in a story shell already intricately illustrated by Dr. Seuss."
The court did not make a single reference to the district court decision it was reversing.
Side note: ComicMix was able to hold onto its dismissal of Dr. Seuss's trademark claim, FWIW. The court held that, under the Rogers v. Grimaldi test, Boldly's use of any trademark rights of Dr. Seuss had an "artistic relevance" of "above zero" (a very low bar), and did not "explicitly mislead consumers as to the source or content of the work."
The case is Dr. Seuss Enterprises, L.P. v. ComicMix LLC, No. 19-55348 (9th Cir. Dec. 18, 2020), available here.
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