Tagged: Ty Templeton

Oh, The Place We Boldly Stop.
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Oh, The Place We Boldly Stop.

The Dr. Seuss Enterprises lawsuit against us is finally over.

In August 2016, we put up a Kickstarter for Oh, The Places You’ll Boldly Go!, a mash-up of Star Trek and Dr. Seuss to be written by David Gerrold, drawn by Ty Templeton, edited by Glenn Hauman, and published by ComicMix LLC later that year. DSE sent us a cease and desist letter on September 27, 2016. (Yes, the legal wrangling lasted longer than the Enterprise’s original five-year mission.) DSE filed a DMCA motion to take down the Kickstarter campaign on October 7, and filed suit against us on November 10, 2016, alleging copyright infringement, trademark infringement, and unfair competition.

We put up a good fight. We defeated the trademark infringement and unfair competition claims, and that win was affirmed on appeal. We also won summary judgment on the claim of copyright infringement, though that was reversed on appeal. The court set a pretrial schedule in September 2021 and we were well positioned to have a jury resolve whether or not you could see this book.

And yet, today we’re announcing that we and DSE submitted a proposed consent judgment for the suit, and that the Honorable Judge Janis L. Sammartino granted it on Friday, October 8, 2021 and closed the case.

Why? The simple truth is— we ran out of time.

This past year, Ty was diagnosed with Stage 3 colorectal cancer. This has required him to undergo months of chemotherapy and radiation treatment, just to prepare him for the needed surgery—which will then require weeks of recuperation until he recovers enough to go through six MORE months of chemo and radiation, and then MORE surgery after that. This has affected his ability to work, to draw, and to do any of the things an immunocompromised person shouldn’t do, especially in the middle of a global pandemic.

And the trial schedule would have been smack in the middle of all of that. After five years of sometimes ridiculous litigation and with the pre-trial deadlines looming, as Ty’s collaborators and friends, we refused to put him through any additional stress that could in any way impinge on his health and recovery. To the credit of the people at DSE, they didn’t want to put Ty through that either. So we joined in a motion to end the suit the day before Ty’s surgery, in order to alleviate the less serious pain in his ass so he can deal with the far more lethal and literal pain in his ass.

In the consent judgment, DSE concedes some of our defenses and we concede some of their claims. Unfortunately, the terms stipulate that even though the book is complete, we won’t be able to present Oh, The Places You’ll Boldly Go! to you for another forty years, when the Dr. Seuss copyrights are set to expire and his books enter the public domain. (We can start taking preorders in January 2062, so set your calendar reminders now.)

We still passionately believe in and stand for creators’ rights, including fair use, and we still maintain that Boldly is a fair use that could not have harmed DSE in any way, now, five years ago, or in forty years. Unfortunately, the Ninth Circuit Court of Appeals’s view of fair use makes it very difficult to overcome a well-heeled copyright holding corporation if it wants to stand in the way (anyone who thinks “corporations are people” has never seen a corporation in a cancer ward) and they decided that the book was over the line. We’re looking forward to the day when you can finally see the full book for yourself and make your own determination about it—until then, it’s like writing a book report by just looking at the cover, never seeing what’s inside.

It has been a long five-year mission filled with many absurdities. At one point, Universal Pictures asked us to help promote “The Grinch” DVD release, so DSE could make more money to bash over our heads. At another point, DSE paid an “expert witness” who got an artist to redraw our book in the most dreadful way imaginable, and then did a trademark survey asking shopping mall customers to compare Ty’s artful mix of Seuss and Trek with that hack job. We’re still wondering how our book referencing a single illustration from How The Grinch Stole Christmas could have taken “the heart of the work,” as the Ninth Circuit Court of Appeals thought, when the illustration in question shows neither the Grinch, Christmas, or anything being stolen. And less than thirty-six hours after the Ninth Circuit reversed the fair use ruling, we got to watch Saturday Night Live air a sketch about the Grinch in a Whoville three-way, with nary a peep from DSE.

We’re also grimly amused about how we had to fight a fair use case while DSE’s own publisher, Penguin Random House, put out their own unauthorized parody, Oh, The Meetings You’ll Go To! (Although there is some question as to whether or not Meetings is officially sanctioned by Dr. Seuss Enterprises, as the copyright page of Meetings makes no mention of a DSE license, yet this since deleted tweet from Eric Nelson on August 4th, 2020 says otherwise…)

But when we were sued two days after Election Day 2016, we knew that letting anyone with lots of money, name recognition, and power have the ability to shut down even the gentlest of parodies and mildest of commentaries about them unchallenged was an extremely bad precedent to set for the future—if for no other reason that we make up for one another’s biases by being able to criticize each other, whether we are children’s book authors or circuit court judges.

We can take satisfaction in many of the victories and precedents this case has set, including:

  • The Ninth Circuit made it explicit that mash-ups can be fair use. (Just not, apparently, ours.)
  • The District Court’s summary judgment ruling held that there are no exclusive trademark rights in an artistic style, or a distinctive font or typeface.
  • In fact, the trademark infringement and unfair competition claims wound up a total rout. They were dismissed based on nominative fair use in 2017. DSE renewed them, and we won judgment on the pleadings over its claims about the book’s title based on the Rogers/First Amendment test in 2018. We won the “that’s not even a thing” issue over the Seussian art style and typeface in 2019. And in 2020 the Ninth Circuit affirmed everything under Rogers and the First Amendment.

While we’re not entirely pleased with the case’s outcome, we remember the words of historian Richard Hofstadter, who observed that sometimes people must “endure error in the interest of social peace.” If we were ultimately unable to persuade the Ninth Circuit to reduce the amount of error involved in determining fair use for creators, we’ve done what we can to forge a path for future fair use activists.

There are many people we’d like to thank for helping us go boldly, as we believe that, as our book says, no one goes forward alone. First and foremost: our lead attorney Dan Booth of Dan Booth Law, who fought the good fight with the strength of a hundred lawyers against a firm with four thousand lawyers. We also give thanks to Michael Licari, now in-house counsel at Veteran Benefits Guide, Dan Halimi, now at Halimi Law Firm, T.C. Johnston at Internet Law, Joanna Ardalan of OneLLP, who appealed our case to the Supreme Court, and Ken White of Brown White & Osborn LLP, who sent up the Popehat signal that brought us much needed assistance in the first place. And we thank Dr. Joshua Gans, our expert witness, who generously donated his time and testimony and worked under ridiculous constraints.

We’d also like to thank the people who filed amici briefs taking our side:

Francesca Coppa, Stacey L. Dogan, Deborah R. Gerhardt, Leah Chan Grinvald, Michael Grynberg, Mark A. Lemley, Jessica Litman, Lydia Loren, David Mack, William McGeveran, Mark P. McKenna, Lisa P. Ramsey, Pamela Samuelson, Jessica Silbey, Rebecca Tushnet, Magdalene Visaggio, the Electronic Frontier Foundation, the Organization For Transformative Works, Public Knowledge, and their counsel Chris Bavitz, Mason Kortz, Phillip R. Malone, Meredith Rose, Eric Stallman, and Kit Walsh.

And we’d like to also thank Mike Gold, Martha Thomases, Brandy Hauman, Keiren Smith, Pam Hauman, Shann Dornhecker, Mark Treitel, Joshua Masur, Katherine Trendacosta, Heidi Tandy, Meredith Rose, Brian Jay Jones, Mike Godwin, Margot Atwell, Camilla Zhang, Oriana Leckert, Allison Adler, Michael C. Donaldson, Film Independent, the International Documentary Association, and Steve Saffel.

We’d very much like to thank United States District Judge Janis L. Sammartino, who presided over our case with patience, fairness, wisdom, and thoughtfulness, and all of the staff that supported her.

And finally, we’d like to thank all of the Kickstarter backers who wanted to make this book a reality, all the supporters who helped cover (the start of) our legal expenses, and all of the journalists and scholars who followed and reported on our case. We are grateful for your generosity and faith, and are very disappointed that we can’t show you what you’ve been waiting years to see. At least not yet.

For those interested, the case is Dr. Seuss Enterprises LP v. ComicMix LLC et al.,; case number 3:16-cv-02779 in the United States District Court for the Southern District of California, and case number 19-55348, in the United States Court of Appeals for the Ninth Circuit.


P.S.: There’s two more last minute “thank yous.” The proposed consent judgment was submitted this past Tuesday, October 5. On Wednesday, October 6, Ty had his surgery, which went well. And on Thursday, October 7, two guys joined David and Glenn in sending get-well notes to Ty—a Mr. Shatner and a Mr. Takei.

Thanks, captains.


ComicMix Vindicated in Dr. Seuss Lawsuit Over Literary Mash-Up; Judge Dismisses Trademark Claims, Copyright Claim Will “Boldly Go Forward”

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 Stigs 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.

Marc Alan Fishman: Is Lego Batman The Best Batman Ever?

This past weekend my wife and I tried to be adults, but Fandango’s inexplicable UI rendered my better/prettier/sexier/amazinger half confuzzled. The tickets we purchased to see “Split” by M. Night Shamalamadingdong were for the wrong date (as in three days prior to when we were currently out). D’oh! Mistakes happen, no biggie. But with a sitter on the clock, and time dwindling, we opted instead to catch “Get Out” by Jordan Peele. Until we noticed that the entire theater was sold out — save for two seats not together. And boy, it’d be a hindrance to a date night to not sit together.

So we saw “Lego Batman.” It would be the second time I’d seen it in as many weeks.

I won’t bury the lede: “Lego Batman” is amazing. It’s a visual and auditory roller coaster that nearly never comes up for air. In fact, I can honestly think back to only two sequences in the over two hours of show time where there are actual silent, simple pauses of reflection. All other times it was non-stop jokes, fights, and fun-fun-fun.

One of the more interesting debates I’ve seen creep up lately in my social network posits that “Lego Batman” is indeed the best filmed adventure of the caped crusader. Through the mixture of camp, thoroughly deep comic references, and a balanced story that actually deals with the emotional baggage of Bruce Wayne in a thoughtful non-emo-broody-whiny-baby way… most nerds are finding a hard time placing any other Bat-film above the Danish brick-based flick.

Are they wrong?

By way of Gene Ha sharing it, Ty Templeton says so. Ty places “Lego Batman” at honorable mention status… falling fourth to “The Dark Knight,” “Mask of the Phantasm,” and “Batman: The Movie”.

If I’m being bold myself, I agree that “Lego Batman” isn’t the best Bat-movie. “The Dark Knight” still is. It won’t be topped in my lifetime. I’m nearly certain on that. But I’d proudly put the Lego flick in a comfortable second place. The two films are truly polar opposites, and nearly incomparable given their intended target audiences. But the devil is in the details, and as Templeton himself denotes: Zach Galifinakas doesn’t do the Joker any justice. Whether it’s the script itself or the delivery of the lines, it’s odd that the yin to Batman’s yang truly is the yoke that holds “Lego Batman” down just enough to place it solidly as the best all-ages Bat-flick… but nowhere near the best overall film in the franchise.

This week’s article is a celebration though, not a nit-picky snark fest. Minor voice foibles aside, “Lego Batman” has a cup that runneth over in fan-service. By building on Will Arnet’s id-cum-Batman take on the character — equal parts Frank Miller’s “God-Damned Batman” and Adam West’s “Gosh-Darned Batman” — we finally get a Batman that changes from act one to final curtain. Look long and hard at every other film; I dare you to see true growth. Letting the villain fall off a church, or out of the back of a train doth not a hero make.

Bats aside, “Lego” also features the first true collaboration between Bat-family members that stays nearly believable. Taking orphan endangerment with a grain of salt and you’re left with the most complex female character in a Bat-movie, period. Babs Gordon in “Lego Batman” leaves little girls as proud as the boys exiting the theater. Suck on those bricks, Dr. Chase Meridian.

And did I mention the movie gives frames of film to Crazy Quilt, Zodiac, Calendar Man, Orca, Clayface-as-voiced-by-Allison-Brie, and still manages to tie in Lord Voldemort, King Kong, Sauron, and the flying monkeys of Wizard of Oz into the final battle? On that merit alone, “Lego Batman” boggled and baffles the mind with pure joy.

In the annals of Bat-films “Lego Batman” is a tough act to follow. Especially when Ben Affleck is already souring to the character. While it may never go down as the best, it will clearly hold sway in nerdy debates to come over the next millennia which flicks are really any more fun.

“All great articles end with amazingly relevant quotes. And Marc Alan Fishman is the best quoter of all time.” – Batman

Mike Gold: Sweet Home Comicon

Mike Gold Boba Hawk

Last week, I reported in this space I was about to leave for Wizard World – Chicago, well-known to readers as my home town and the first love of my life. I got back late yesterday, when I wrote (or will write, depending upon your concept of consensual reality) these fabled words, a heartbeat before deadline.

We ComicMixers (Glenn, Brandy, Marc and me) had a swell time, some of it actually at the convention. We met all kinds of people who were interested in ComicMix Pro Services, which gives me hope, and I got a chance to catch up with a whole lot of friends. Unbelievably awesome meals with; Wednesday, Alex Ross, Hilary Barta, Monte Beauchamp and Jim Wiznewski; Thursday, Dean Haspiel, Danny Fingeroth, J.J. Sedelmaier and Rivet Radio’s Charlie Meyerson; Friday, Ty Templeton and KT Smith; Saturday, if I told you I’d have to kill you; Sunday, The Unshavens. Nothing makes me happier with my clothes on than fine conversation, and I was truly lucky to break bread with all these folks. Including the people I can’t tell you about. Yet.

I was on two panels – a ComicMix Pro Services Tells You How To Get Press For Your Comic Book panel where we got to meet even more talented indy writers and artists, and the Chicago Comics History Panel with Danny and J.J., Larry Charet, Ron Massingill, and the completely wonderful Maggie Thompson. It dawned on me that I’ve been going to conventions since 1968 and Maggie has been going to them… well, longer, but this is the first time we were on a panel together. That simply defies the odds. I’d crawl over a mile of broken glass to do a panel with Maggie.

That latter panel provided the opportunity to do a nice and extremely well-deserved tribute to my former partner, First Comics Co-Creator Rick Obadiah. That was very cathartic, and Rick would have enjoyed it. He wouldn’t have believed it, but he would have enjoyed it nonetheless.

I haven’t done too many shows this year, far fewer than usual. That was fine, but it was great to see fans and old friends and about twelve thousand cosplayers dressed as Deadpool. Next show: the Baltimore Comic-Con, in Baltimore (hey, Wizard World – Chicago was in Rosemont) September 25 through 27. I love that show.

One more thing. Shortly before Wizard World closed on Sunday, I was handed the opportunity to take the above picture with Boba Hawk. As a lifetime Chicago Blackhawks fan, that was… well, you can see for yourself in the photo. No, Svengoolie wasn’t there, but I wore his t-shirt anyway. It glows in the dark, and at a comics convention, one can never tell.