To: Universal Pictures Home Entertainment Re: “The Grinch”
Dear U.P.H.E., we got your press release... Afraid we can’t run it, thanks to legalese. For as much as we might want to promote “The Grinch™” The Seuss folks won’t budge here, not even an inch. See, Dr. Seuss™ sent us a cease and desist An action which, you understand, has us… peeved. They told us, “Use any Seuss IP? No more!” Not just Seuss/Star Trek mashups; Grinch™ hype too! Then... war. They proceeded to sue us, making wild claims of willful infringement, a charge that defames.
We're not sure that we’d want to, in any case, assist making money they'll shove in our face as they continue to file legal motions and otherwise show very hostile emotions.
Our defense costs us thousands, and now you beseech: “Please use your platform, extend Seuss's reach! Help them make more moolah, which they’ll utilize to stifle your speech so you can’t criticize! Push their retelling! Please help us to coax!" Their chutzpah is stunning. The nerve of these folks.
We don’t hold it against you, we know that it’s rough— pushing “Grinch™” weeks after Christmas is tough. We’d normally help; after all, ’tis the season but we obviously can’t and now you know our reason.
If you’ve just heard about this suit, and if you think that you’d like to contribute, please do!Here’s the link.
We’re now in the summary judgement last stages, the judge has the filings with which she engages. Our request for judgment should stand on its own, the facts are all in, there’s no need to postpone. Our motion is clear for the trained legal reader although we admit that it’s not done in meter. We think our case strong, we trust the judge concurs, and fervently hope that our win she confers.
And to everyone following our long fair use fight: Thanks for all your support... and to all a good night.
Yesterday, Judge Janis Sammartino handed down a ruling in our ongoing case, Dr. Seuss Enterprises v. ComicMix, allowing the case to proceed to discovery while narrowing the allegations in significant ways. Buried in the order is a very important point that has implications for the entire comics industry, to wit (with footnotes and citations omitted):
Plaintiff claims Defendants misappropriated “the unique illustration style [of] the characters and backgrounds found throughout Dr. Seuss books, that have come to be instantly recognized by consumers as source identifiers for Dr. Seuss.” Defendant argues trademark law does not protect an artistic style. …
Most courts have held there is no trademark protection for the “style” of an artist. Style is a matter more properly protected by copyright law. …
Plaintiff cited no authority to support its assertion that its general “style” is a protectable trademark. Plaintiff only argues that the book can be subject to both trademark and copyright protection and that distinctive characters can qualify as trademarks. Plaintiff claims the Ninth Circuit has recognized Plaintiff owns trademark rights to “the character illustration of the Cat [in the Hat’s] ‘stove-pipe hat’.” But the illustration of the Cat’s hat is different than the general “illustration style” and non-specific “characters and backgrounds found throughout” Plaintiff’s books, in which Plaintiff asserts trademark rights now. And Plaintiff does not allege trademark rights in any specific character or background image in [Oh, The Places You’ll] Go! The Court is not holding illustrations of specific characters within Go! are precluded from trademark protection, but at this stage of the proceedings and based on the information in front of the Court, the Court finds that Plaintiff’s claimed general “illustration style” is not protectable.
What does this mean for comics? It puts plainly what many artists in the comics industry already knew: you can’t be legally dinged for drawing like Jack Kirby, or Neal Adams, or John Buscema, David Finch, Jim Lee or anybody else— not directly copying art, which might lead to a copyright infringement claim, but drawing in the style of a particular artist (or if you prefer, a particular school of art, like, say, the Bolognese or Kubert school) isn’t a trademark infringement. When we speak of an artist’s “trademark style” we’re not actually speaking of a legal trademark, and as such it’s not something that can be legally claimed.
And this means that if, say, Ty Templeton draws a portrait of me looking like I was drawn by Dr. Seuss, there’s not a thing Dr. Seuss Enterprises can do about it.
Of course, this is generally a good thing. This means that no artist can be charged with stealing someone else’s “trademark style” or the way they draw (or for that matter, how they shoot a photograph or a movie). We all learn from each other, we all influence each other— particularly in comics— and we all build on other works and artistic traditions and styles to create new works of art to tell stories.
On Friday, June 9, the United States District Court for the Southern District of California partially granted ComicMix LLC’s motion to dismiss the Dr. Seuss estate’s copyright and trademark infringement lawsuit over the book Oh, the Places You’ll Boldly Go! To prevent publication, Dr. Seuss Enterprises, LP filed the lawsuit in 2016 against the book’s publisher ComicMix, its author David Gerrold, illustrator Ty Templeton, and Glenn Hauman, ComicMix’s co-founder and vice-president.
United States District Judge Janis Sammartino dismissed the trademark claims under the doctrine of nominative fair use, and largely agreed with ComicMix’s position that fair use protects the book from copyright infringement claims. Judge Sammartino found that the book is “a highly transformative work that takes no more than necessary [from Dr. Seuss’s books] to accomplish its transformative purpose and will not impinge on the original market for Plaintiff’s underlying work.” She emphasized that the case has broader significance: “This case presents an important question regarding the emerging ‘mash-up’ culture where artists combine two independent works in a new and unique way. … Applying the fair use factors in the manner Plaintiff outlines would almost always preclude a finding of fair use under these circumstances. However, if fair use was not viable in a case such as this, an entire body of highly creative work would be effectively foreclosed.”
As an example, Judge Sammartino refers to this image:
Plaintiff’s work depicts two similar-looking, fanciful “Zax” creatures arguing in the middle of a desert, with footprints to mark their arrival. Boldly takes the same desert landscape and footprints, and in the fanciful creatures’ place puts two similar-looking beings of seemingly Vulcan descent—one of which is drawn in the same position as his Dr. Seuss counterpart and one of which is transformed from the Dr. Seuss creatures’ aggressive stance into a contemplative pose—deep in the midst of playing some type of alien board game. Additionally, Boldly’s text reveals that the two Vulcan creatures are, in fact, the same person, unlike Go!’s distinct “North-Going” and “South-Going” Zaxes. Boldly therefore transforms the argumentative Zaxes and their corresponding depiction into a cloned Vulcan matching wits with himself over an alien boardgame. One Vulcan is positioned almost identically to his Zax counterpart to “conjure up” the Dr. Seuss work, while the other Vulcan is drawn anew and a board-game added in order to fully accomplish the work’s overall transformative purpose.
The copyright claim survives, awaiting proof of any harm to the Dr. Seuss estate’s licensing opportunities, and the estate was given two weeks to amend its trademark claims.
Dan Booth of Booth Sweet LLP, ComicMix LLC’s lead counsel, said, “I have never seen a case so focused on mash-up culture — and so strongly supportive. Judge Sammartino’s decision implicates not just literary hybrids but music remixes, appropriation art, supercut videos, and more, strongly suggesting that they should be protected from copyright claims.”
Oh, the Places You’ll Boldly Go began as a highly successful Kickstarter campaign, written by Gerrold, a Hugo and Nebula Award winning science fiction author perhaps best known for writing the Star Trek episode “The Trouble With Tribbles.” Ty Templeton is a veteran Eisner Award winning comics artist known for his work on Batman, The Simpsons, and as the co-creator of the Vortex Comics series Stig’s Inferno.
ComicMix publishes a line of graphic novels by some of the best new and established talent in the industry. ComicMix Pro Services works with creators to produce, publish and market their work in a competitive marketplace. In addition, ComicMix runs one of the Internet’s most popular pop culture news sites.
We truly vlog this week as we catch everyone up on what we’ve been doing since we turned 13 (Birthday Week included Kaaboo and Mickey’s Halloween Party at Disneyland) before we talk about what we learned while being in charge of our local library’s Banned Books Week display. Want to know why Winnie The Pooh was banned? We’ll tell you that.