Dr. Seuss sued Star Trek because Dr. Seuss wrote a book entitled “Oh, The Places You’ll Go!” It’s a popular graduation gift. Star Trek did what they called a “parody” of that book, calling it “Oh, The Places You’ll Boldly Go!” and using Star Trek characters in a Seuss-like literary environment. The drawings evoke Seuss; the text evokes Seuss; certainly the title evokes Seuss. The Spock character’s pointed ears and the uniforms evoke Star Trek.
The US District Court where the trial was held found in favor of Star Trek; the parody was indeed a parody. However, it seems the 9th Circuit, which is the intermediate court between the District Courts and SCOTUS in several western states, disagrees. They held, on review of the evidence, that “Boldly” is not transformative enough for a parody and thus it is infringement, not “fair use.”
I’ve said many times that fair use is the murkiest of all murky areas of law. When is it ok to use others’ work in your own? Well, you can license the use of the original work; getting permission to use the original is the clearest path through the fair-use jungle. Or you can roll the dice and hope the courts agree with you. That’s not always the best option.
To determine fair use, the court weighs four factors, each on a sliding scale:
The purpose and character of the use, including whether it is of a commercial nature or for nonprofit educational purposes
Here, the work is of a commercial nature, definitely written for profit. That leans AWAY from fair use.
The nature of the copyrighted work
Is it fiction or fact? Facts can’t be protected by copyright, fiction is highly protectable. Clearly, this is a work of fiction. That the original work is highly protectable leans AWAY from fair use.
The amount of the portion used in relation to the copyrighted work as a whole
Well, Star Trek clearly did a take-off on the title, and it clearly did a take-off on Theodor Seuss Geisel’s writing and drawing styles. This new work invokes the original. The actual text is not the same, but the tone and feel sure are. That one also leans away from fair use.
Had Star Trek used just the title without the drawings or text in the style of Seuss, that may have been ok; had they used the title and either the writing OR the drawing style, that would have been less likely to be ok. But they did all three. The Star Trek work clearly takes off on the Seuss work. That was not ok.
The effect of the use upon the potential market for or value of the copyrighted work
Seuss’ book is a popular gift for graduations. Lots of high school and college graduates have a dusty copy sitting on their shelves because some aunt gave it to them when the kids collected their diplomas. Now, though, fewer kids have the original sitting on their shelves; its corner on the market has been eroded by the Star Trek version.
Seuss claims the Star Trek work cut into the market for Seuss’ book; in other words, the new work competes rather than complements. Definitely, that leans AWAY from fair use.
Muddy the waters
When that weigh-in is complete, things get really muddled. The court then takes the totality of the circumstances surrounding each of the works and adds in the weight that individual judge chooses to give each of the four factors and determines whether the new work infringes the old.
Basically, a fair use determination can spin on the whim of the federal judiciary. And therein, my friends, lies the silt floating up from the bottom of the basin of fair use jurisprudence.