Copyrights don’t last forever. If they are not properly renewed, they will eventually expire. And if so, then copyrighted works are forever in the public domain, and anyone can use them without fear of being sued for copyright infringement.
Such is the case with some of the late children’s book author DR’s most beloved creations. SEUSS? Can you or I use Snitch or Zacks if we want? If so, the implications in the current Star Trek and Dr. Seuss process could be staggering!
Okay, a brief description of where we are. After Dr. Seuss Enterprises (DSE) was sued for copyright infringement for attempting to use Seuss’ drawings of Star Trek characters and their book Oh, the Places You’ll Boldly Go! (or Boldly for short) seems to have won over publisher ComicMix, along with Tribbles creator David Gerrold and illustrator TY TEMPLETON. In March 2019, Ninth Circuit Judge, the Honorable Janis SAMMARTINO, dismissed the case, ruling that Boldley was entitled to protection under the fair use doctrine.
So DSE appealed the decision, and last December a panel of three Ninth Circuit judges unanimously held that Boldly was not fair use and remanded the case back to Judge Sammartino with the understanding that the mash-up team could no longer invoke the fair use defense to save its Lorax.
It was looking bad for the Mash-up team, but just when I and many others were about to cancel ComicMix and co, they seem to have an ace up their sleeve. Actually, it’s something between an ace and a miracle pass at the end of the fourth quarter, but either way, it could be a complete game changer!
Let’s take the leap….
In their latest motion for summary judgment (which means don’t waste everyone’s time with a jury trial, Judge, because you know we won, so now give us our money…) from last Friday, DSE is asking for a legal award of $75,000 per work infringed, and they claim that THREE Dr. Seuss were slavishly copied – Oh, Places you will go! as the Grinch who stole Christmas! (Grinch) and Snowballs and Other Stories (Snowballs). Some examples are…
On the left are two pages from the stories in Funny… and on the right the corresponding pages from Funny.
Left, page of Go! (top) and Grinch (bottom)… And on the right, the corresponding pages of Bolder.
That’s 3 x $75,000 = $225,000 in potential damages awarded by the EHR that ComicMix would have to pay….. and possibly court costs. On you.
Before we tell you how the Mash-Up team plans to get out of this predicament, we need to discuss two VERY important things: …..
SO YOU WANT TO SUE SOMEONE FOR COPYRIGHT INFRINGEMENT?
There is a crucial difference between copyright and registered copyright. When you create something – a poem, a book, a song, a painting, a photograph, a blog post – you automatically copyright the work you create. You can use it any way you want, license it, not license it, etc. But it’s yours, and no one can say you didn’t make it, as long as you make a truly original piece.
Suppose someone infringes your copyright by reproducing all or part of the work you created and then tries to sell or license their derivative (copied) work. Can you sue them? Well, yes and no. To sue someone and get legal damages if you win, you must have a valid REGISTRATION of copyright. It is not very difficult to register your work with the U.S. Copyright Office. You can do this online for just $45 or via a four-page paper form (including two pages of instructions) for $125.
The form is not Wocket Science, but it must be completed correctly and completely. Doing it wrong – even by accident – can cost you dearly! You don’t believe me? Just look at this case in which a fashion company called Unicolors won a whopping $846,720 for willful copyright infringement of a much smaller company called Hennes & Mauritz, L.P. H&M appealed, arguing that Unicolors’ copyright registration was not properly done. In fact, they argued this in court, but the district judge ruled that the clerical error was an honest mistake and that, since no intent to deceive the Copyright Office could be shown, it did not matter that the recording was made illegally.
The three-member Appeals Committee did not agree. Essentially, they were saying that a mistake is a mistake if it is deliberate, even without malicious intent to deceive (which is almost impossible to prove anyway). And the instructions clearly explained how to fill out the form. Unicolor therefore deliberately provided incorrect information. The appellate judges overturned the jury’s verdict, set aside the $846,000 verdict, and sent the case back to the trial court with instructions to ask the Registrar of Copyrights whether it was a valid copyright. This appeal decision was made last year, and it really shook things up! In fact, Unicolor is now asking the U.S. Supreme Court to review that decision.
DOCTOR. SEUSS IN THE PUBLIC DOMAIN ????
Okay, now we have to go back in time to 2020, to 1953. Children’s author Theodore Geisel, who wrote under the pseudonym Dr. Seuss, had a small number of children’s books to his credit, including And Say I Saw Him on Mulberry Street (1937), Horton Hatches Egg (1940), and McElligo Pool (1947). But to get more exposure, Geisel sold some stories to a magazine for young people called Redbook. These stories include Snowballs in July 1953 and Zack in March 1954…..
Zack’s first appearance since March 1954…click to enlarge.
The magazine’s publisher, McCall Corporation, held copyright to the two issues and their contents. Geisel never bothered to register his own copyright on either story, but in 1956 McCall transferred the copyright to Geisel. So that’s it, and Dr. Seuss (and his DSE estate) now owns the rights to both stories?
The Copyright Act of 1909 (still in force in the 1950s) required a timely renewal of copyright, no later than 28 years after the first publication, to retain ownership. That was in 1981 and 1982. But Geisel never renewed his registration for either story. Does this mean they have entered the public domain? ? ??? Can anyone impersonate Snowball or Zack without getting revenge… …from the boys in the Theodore Geisel mansion? (Sorry, I had to put at least one rhyme in this blog).
Fast forward (or backward, or whatever!) to 1961, and Random House Publishing publishes The Sneetches and Other Stories and obtains a copyright registration on Geisel’s name in 1962. So Seuss still owns a copyright?
Well, uh… (Okay, I’ll stop.)
As early as 1962, the instructions for line 5 of the copyright application form included a clarification for applicants: If a significant portion of this work has already been published, please provide a brief summary of the new material in this version. A new case may consist of a compilation, translation, excerpt, edition, etc. and additional text or image material. Random House has left line 5 blank…. despite the fact that two of the four Snowballs stories, Snowballs and Zacks (originally Zacks) contain elements and are based on stories originally published in the July 1953 and March 1954 issues of Red Book.
I have marked the white line 5…. Click on the image to enlarge it.
The Copyright Office is not supposed to play detective and investigate every request. So he took Random House at its word and granted a copyright registration for Sneetches, even though it did not include any reference to the original Redbook.
In 1989, 28 years later, Random House’s representative, Geisel, filed an application to renew the registration of copyright in Snatch, and again the line Contribution to a periodical or composite work was left blank, without mentioning that two of the four stories had been taken from work previously published in Redbook.
And before you think this was just a case of Geisel and/or Random House not knowing that the Copyright Office was waiting to publish previously published works: the 1958 copyright applications for Turtle and Other Stories and their 1986 renewal showed that Redbook had published earlier versions of his stories.
In fact, the mash-up team argues that, regardless of what happened afterwards, the rights to Snitch and Zacks (in their original Redbook form) entered the public domain in 1981 and 82 because the original copyright was never properly renewed 28 years after the first release. If ComicMix wanted to, they could take the cover and text of those two stories, change nothing, package them up and sell them in bookstores….. and there’s nothing DSE can do to stop them, since DSE doesn’t own those rights any more than you or I do. The public domain is the public domain.
Jumping ahead to 1975, Geisel thus paints a picture of a well-ordered economic situation: A prescient reappraisal first published (along with Seuss’s poem Up and Down) in the June 1975 15th issue of The New York Times Magazine. Fifteen years later, the same illustration was copied (literally photocopied) by Geisel, modified slightly to add a little boy to the character, and reused as part of the last of his books published during Geisel’s lifetime: Oh, the places you’ll go! The original cartoon from 1975 can be seen on the bottom left, and the corresponding page from Go! – on the right…
Click to enlarge
The New York Times Magazine obtained a copyright registration for this issue in 1975 and renewed it in 2003. When Random House applied for the copyright of Go! in the name of Geisel and his wife Audrey in 1990, the 5th edition was also registered here. Line of application – State any pre-existing works or works on which this work is based or into which it is incorporated – left blank.
WHY ARE YOU BEING SO DIFFICULT?
These are just little sloppy mistakes, aren’t they? Apparently Dr. Seuss wrote all these books, drew all these drawings, owned all the copyrights and left them as part of his estate.
Well, the courts might see it differently.
So you wonder why the Mash-Up team has waited until now to talk about it? Shouldn’t they have asked these questions in 2017 or 2018 or 2019, when the motions were still before Judge Sammartino?
Actually, yes. They filed motions under section 411 of the Copyright Act, which says you can’t sue someone for copyright infringement unless you have a proper copyright registration. In case of doubt about the validity of the registration, the judge must check with the copyright register whether the registration is valid. But here, Judge Sammartino merely suggested that the amount of material Geisel had included in Sneetches and Go! from earlier sources was not significant enough to require copyright registration disclosure for either book. It made this decision (without consulting the US Copyright Office) in 2018.
But then, in the lawsuit against Unicolors that I mentioned earlier, the 2020 decision fell apart on appeal….. and literally changed everything about that case. In their decision on appeal, the three judges noted that the judge may NOT simply assume. Judge Sammartino asked the Register of Copyrights to answer the question: Knowing what you now know about the earlier publication of some of these works, would you have accepted or rejected this application for copyright registration? And if the answer is that the application would have been rejected and sent back for correction, then the current copyright registration should be considered invalid.
AND WHAT HAPPENS NOW?
At that time, in 2018, Judge Sammartino had no valid case law requiring her to go to the copyright secretary. Now she doesn’t have much of a choice. This request is not that complicated for the registrar, and the answer is usually given within a maximum of 30 days.
But what’s going on?
Well, then it becomes a game of chess again. You see, there are two possible answers the agent can give. Let’s say she cancels registration for Snitch and Go! That leaves only one possible object of injury, a drawing of everyone in the world holding a hand. ….. a drawing of the Grinch…
Is a single image that does not contain the same characters or even the same number of characters enough to be considered a violation? Suddenly the subject of fair use is back on the agenda! The appellate judges held that Boldley did not constitute fair use because much of the text had been slavishly copied. Now there is only one page. Is this still infringement, or should we return to the realm of fair use, where we use as little (as little as possible, necessarily) copyrighted material to create a new, original work?
Obviously, this would be the best option for the Mash-up team. But what happens when the registrar declares that it is a minor error that is not enough to invalidate the copyright registrations? Finally, for Go! there was only one illustration, copied from an earlier publication in the New York Times Magazine….. just one from a large book. What is the significance of a small illustration?
Indeed! What makes a small and unique illustration? In fact, Boldley used only one small illustration of the Grinch….. and it was not copied as carefully as Geisel copied his illustration for the New York Times Magazine. And don’t forget that they own the copyrights to this edition (which contains Geisel’s illustrations), as they never ceded those rights to Geisel. And the New York Times Magazine had a circulation of over 2 million at the time.
So if a small copyrighted illustration from another publisher with a print run of 2 million copies isn’t enough to cause the Copyright Office concern, why would it cause the court enough concern to award $75,000 to ComicMix because they essentially did the same thing….. Less than the same?
Oh, and then let’s talk about The Sneetches and Other Stories, which uses not one page of fiction, but TWO FULL PICTURES first published in Redbook. If that’s not enough to bother the Copyright Office, why should the DSE get tens or hundreds of thousands of dollars from ComicMix if these things don’t really bother them when the shoe is on the other foot?
So, yes, there seems to be a lot left in this chess game. First we have to wait and see what the Registrar of Copyrights has to say, and I suspect it will since the Unicolors decision more or less requires it. Unicolors is trying to appeal to the Supreme Court, but there is no guarantee that the Supreme Court will even hear the case, and until it issues an opinion, the Ninth Circuit Court of Appeals’ decision remains in effect. So Judge Sammartino will have to rule on the 411 mash-up team’s latest petition long before the Supreme Court delivers its verdict.
For now, this means we’ll all have to wait for a hearing from Judge Sammartino and – probably after that – the Secretary of Copyright.
If you want to read all of the above in a much drier and longer 21-page legal motion, without the cartoons, here is the MOTION TO REVIEW THE COPYRIGHT REGISTER APPLICATION PROVIDED BY 17 U.S.C. § 411(b) that the MASH-UP team filed with the court last Friday.
The next hearing is the 10th. June, boys. Stay informed!
frequently asked questions
Are the Dr. Seuss books copyrighted?
Unfortunately, Dr. Seuss’ comments and quotes are not in the public domain and may not be used on products for sale without written permission from Dr. Seuss. Seuss… Seuss (Theodore Seuss Geisel) died in 1991, and all licensing deals are handled by Random House.
Why was Snatch banned?
According to CNN, the district cites a study that found racial undertones in its work. Some Internet users mistook these ads for a total ban on Seuss. Others have pointed out that acknowledging the racist history of novels is not the same as abolishing it.
Are green eggs and ham copyrighted?
Seuss in the land of fair use lawsuits. The beloved author of Puss in Boots and The Green Egg and Ham died in 1991, but the Geisel estate controls the copyrights to his published works. …
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