By Mark Litwak
On September 15, 2017, Judge Alvin K. Hellerstein of the United States District Court
for the Southern District of New York issued an important fair use ruling about a play based on a children’s book. Playwright Matthew Lombardo wrote Who's Holiday! which makes fun of the characters, plot, and setting of the classic book, How the Grinch Stole Christmas! ("Grinch") by the late Theodor Seuss Geisel who went by the pen name
Dr. Seuss. The author created many of the most popular children's books of all time, selling more than 600 million copies.
The original Grinch book is about a green creature that lives in a cave on Mount Crumpit in the town of Who-Ville, home of the merry and cheerful Whos, who love Christmas.
The Grinch, who hates Christmas, decides to ruin the holiday by disguising himself as Santa Claus and stealing all of the communities’ Christmas trees and presents. While pursuing his evil deeds, he meets Cindy-Lou Who, a cute two-year old. When she asks the Grinch why he is taking her family's tree, the Grinch lies by telling her that he needs to repair a light but will return it soon. Cindy-Lou goes back to bed. The next day, as the Grinch listens for the sound of despair from crying residents, he is surprised instead when he hears merry singing. The Grinch, upon learning that the residents could remain joyous even without presents or Christmas trees, realizes that Christmas means more than presents.
The play is a one woman 75-minute comedy presenting a destitute 45-year-old adult version of Cindy-Lou Who. It takes place at a 1970s-era trailer. Cindy-Lou speaks to the audience in rhyming couplets that are clearly intended to evoke the work of Dr. Seuss while waiting for guests to arrive for her Christmas party. She informs the audience, using bawdy rhymes, of the story of her life, beginning with her first encounter with the Grinch followed by sex, a marriage opposed by her parents, the birth of a child, and eventually divorce.
As she relates her story, Cindy-Lou swills hard alcohol, consumes prescription pills, and smokes a substance she calls “Who Hash," which she describes as just "like a prescription" which keeps her in check to avoid a "conniption." She engages in this self-medication following her realization that none of the guests she invited to her party is going to arrive, as they keep calling throughout the Play to cancel.
The key issue raised by the case was whether the Play is a fair use that comments on Grinch by imitating and ridiculing its characteristic style for comic effect, or unfairly exploits the characters, style and themes of Grinch to capitalize on the original. Under the fair use doctrine, authors can draw upon existing works to produce new works of authorship without violating the copyright of the original author. Such uses include fair comment and criticism, parody, news reporting, teaching, scholarship, and research. Thus, a movie or literary critic does not need permission to include a small quote from a work being reviewed. It is sometimes said of writers that if you borrow extensively from another’s work, you are a thief; but, if you borrow small amounts from many, you are a scholar. Of course, the scholar adds value by synthesizing information from prior works and creating something new.
In determining whether the use of a copyrighted work is a fair use, courts weigh four factors: 1) the purpose and character of the work; 2) the nature of the copyrighted work; 3) the amount and substantiality of the portion borrowed in relation to copyrighted work as a whole; and 4) the potential adverse effect on the market for, and value of, the copyrighted work.
One type of fair use is a parody, which is a work that imitates the characteristic style of an author or a work for comic effect or ridicule. The work copied must be, at least in part, an object of the parody. The central question in many instances is “whether and to what extent the new work is 'transformative.’'' In other words, as the Supreme Court has explained, "whether the new work merely supersedes the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message."
After a detailed analysis, Judge Hellerstein found that the Play “recontextualizes Grinch's easily-recognizable plot and rhyming style by placing Cindy-Lou Who — a symbol of childhood innocence and naiveté — in outlandish, profanity-laden, adult-themed scenarios involving topics such as poverty, teen-age pregnancy, drug and alcohol abuse, prison culture, and murder. In so doing, the Play subverts the expectations of the Seussian genre, and lampoons the Grinch by making Cindy-Lou's naiveté, Who-Ville's endlessly-smiling, problem-free citizens, and Dr. Seuss' rhyming innocence, all appear ridiculous.”
This case is another in a recent series of cases that further defines what is a fair use and expands protection for authors who parody pre-existing works. However, this past June, a motion to dismiss a case concerning the works of Dr. Seuss was decided by the United States District for Court for the Southern District of California with a different outcome. Rather than dismiss the case, the court let the matter proceed forward.
In Dr. Seuss Enters., L.P. v. ComicMix LLC, Defendants created a Kickstarter campaign in order to fund printing and distribution of an allegedly infringing work, Oh, the Places You’ll Boldly Go! ("Boldly"), which combines aspects of various Dr. Seuss’ works with "certain characters, imagery, and other elements from Star Trek, the science fiction entertainment franchise created by Gene Roddenberry. Here, the court refused to dismiss the copyright infringement claim on the grounds that there was insufficient evidence of whether this work would affect the market for Dr. Seuss’ work. The court found that Boldly failed to qualify as a parody even though it was transformative, explaining, “it combines into a completely unique work the two disparate worlds of Dr. Seuss and Star Trek. Go! tells the tale of a young boy setting out on adventure and discovering and confronting many strange beings and circumstances along his path.” While the defendants were not successful in getting the court to dismiss the complaint with a preliminary ruling, the outcome of the case remains to be decided.
These two cases demonstrate the difficulty of determining whether a fair use defense is viable. One useful resource in determining fair use is the copyright office’s compilation of cases in its Fair Use Index found at: https://www.copyright.gov/fair-use/fair-index.html.
 Lombardo v. Dr. Seuss Enters., L.P., No. 16 Civ. 9974 (AKH), 2017 U.S. Dist. LEXIS 150213, (S.D.
N.Y. Sept. 15, 2017), available at https://advance.lexis.com/api/document/collection/cases/id/5PGM-YH61-F04F-03KC-00000-00?cite=2017%20U.S.%20Dist.%20LEXIS%20150213&context=1000516.
 Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 582 (1994).
 See Faulkner Literary Rights, LLC v. Sony Pictures Classics Inc., 953 F. Supp. 3d 701, 712, where the court held that Woody Allen’s inclusion of a short quote (“The past is not dead! Actually, it’s not even past”) from William Faulkner’s Requiem for a Nun in the film Midnight in Paris was a fair use. In Seltzer v. Green Day, Inc., 725 F.3d 1170, 1179 ((9th Cir. 2013), the Ninth Circuit held that the popular band Green Day’s unauthorized use of street artists’ work as a video backdrop for its stage show did not violate the artists’ rights.
 Dr. Seuss Enters., L.P. v. ComicMix LLC, No. 16cv2779-JLS (BGS), 2017 U.S. Dist. LEXIS 89205, at *31 (S.D. Cal. June 9, 2017).