For the creator of Tribblas, David Gerrold, winner of the TY TEMPLETON comic book award, and the publisher of ComicMix, Glenn HAUMAN, last Friday was not a good day. Although there was a bit of good news in their ongoing legal battle with DR. DSE on the Star Trek/Seuss Oh, The Places You’ll Boldly Go mash-up! (short for Bold), most of the news was pretty unfortunate.

In March 2019 everything still seemed rosy for ComicMix. After nearly two years of trial, the Federal Judge of the Ninth Circuit, the esteemed Janice SAMMARTINO, decided before the trial began that Boldley was immune to the FSD complaint, because in her opinion it was fair use. (You can read an in-depth analysis of this decision here.) She rejected the FSD’s claims of copyright infringement and trademark infringement (two different things), so the trial ended before the jury could even sit.

Five months later, FSD appealed to the Ninth Circuit, which seeks to overturn Judge Sammantino’s summary judgment. Last Friday, an appeal chamber of three judges unanimously decided that Boldly is NOT fair use and that the copyright infringement action can therefore proceed. The panel also decided that the summary rejection of the trade mark infringement complaint was indeed appropriate and this aspect of the complaint was therefore closed. (You can read the full decision of the Court of Appeal here).

So, uh… Good news / bad news, huh?

I’m afraid it’s more bad news than good. Trademark claims have always been the most subtle arguments, and even the European Court of Human Rights did not insist on them during the appeal (four amicus curiae-slips were filed, and none of them even addressed the trademark issue). What the European Court of Human Rights really wanted was to reopen the copyright infringement charges, and it succeeded.

AND WHAT DOES THAT MEAN?

The FSD hasn’t won yet. But now they haven’t lost either. We go back to what we had at the beginning of 2019, before the judge makes her summary judgment. The trial was resumed and returned to Judge Sammartino’s courtroom.

If you are an EDS, you are ecstatic and now you have all the cards in your hands. There will (probably) be one more trial, but if you can convince three out of four trained judges that Boldly is not a fair use, you should certainly be able to convince twelve normal people of the same thing. This is indeed not necessary because the decision of the court of appeal can completely exclude the use of the fair use defence (more on this in a moment).

If you are ComicMix, you have a decision to make, and you really only have three options on the menu…..

CALL

Federal law allows ComicMix to appeal this three-judge decision before an extensive panel of Ninth Circuit Judges. It’s called a request for a bank investigation. This time eleven arbitrarily chosen jurors had to maintain or overturn the original decision on appeal. After all, ComicMix may have just pulled the wrong hand, and the other judges may be more willing to agree with Judge Sammartino. Honest business is generally very subjective.

Is it worth a try? After all, what is the drawback, apart from the extra legal costs of filing a motion and banc? If ComicMix changes its mind, the game is over (unless the ECtHR appeals to the Supreme Court and refuses to hear about 98% of the cases pending before the Court). And, of course, if the en banc review does not overturn the decision on appeal, ComicMix can try to bring the case before the Supreme Court. But still…

And if ComicMix loses in his attempt to climb the ladder, the fact remains that it has to go back to where it is now, and it has to go to court. So you have nothing to lose? If the FSD wins in court, it could prove that ComicMix has expanded the file by requesting an en banc review, which would cost the extra money in legal fees. If Judge Sammartino accepts, in addition to the legal damages of the FSD (see below), she will be able to cover the legal costs…. and ComicMix is not a Fortune 500 company!

The decision to appeal therefore involves weighing up a number of risk and reward factors.

TO GO TO COURT AND TAKE A RISK

At that point, unless ComicMix wins the appeal or somehow convinces the ECtHR to settle and drop the lawsuit, they MUST go back to court and play the game. And once it’s back in Judge Sammartino’s courtroom, this can happen….

The judge may make a different decision in summary proceedings. This is a preliminary decision that may influence the case or even terminate it. In fact, it was the judge’s prior summary judgment that ended the lawsuit when she rejected the FSD claim based on her finding that it was bold fair use.

It is clear that the court can now decide otherwise after the professional judges have established that Bold was not a fair use. She can say Game About ComicMix and decide in favor of the plaintiff, perhaps award damages, maybe not.

It is also possible that Judge Sammartino decided in favor of the defendants based on another aspect of the defense (they not only pleaded for fair use, but threw everything in their defense, up to the countertop). If the judge rules on one of these arguments and rejects the case again, expect another appeal from the FSD and many more blogs from you).

And finally, the judge can just say: Okay, let’s do this… and go to jury duty. And then the jury decides. The question is whether the FSD can try to ask the jury to decide on fair use after the professional jury has declared Boldly not fair use. Opinions are divided here. The two lawyers I spoke to said that fair use is the same as an attorney who is incapable of pleading insanity when the court has decided that the defendant is mentally incapable of appearing at trial. But New York Times reporter Daniel Victor said the following in an article about the call: The court order makes it possible to continue the fair use complaint procedure. Maybe it’s a typo, maybe he’s wrong. Or maybe he’s right.

There is also a debate as to whether the abolition of the defense against fair use in a civil case violates the defendant’s seventh amendment right under the U.S. Constitution. But the question of whether ComicMix can bring Fair Use back to the jury is important. If they can’t rely on fair use, they better have other very impressive arrows in their legal sleeve.

Well, if ComicMix loses, it can be a little bad or a lot bad. If the jury finds that there has been a violation, the following questions arise: 1) How many violations and what type of violations? Why is this so important? Indeed, the legal damages are awarded on the basis of each job that has been violated. In this case it would be a book by Seuss. Apparently, ComicMix Oh, the places you’re going! as a source. But they also used the Snitch star machine, as well as the North and South Zax from Zax……

Snitchie and Zacks are from the same book. So there could only be two cases of infringement for which damages could be awarded, although I did not see the whole Boldly book (only what was in the court documents). But let’s assume for the time being that there are only two cases of violation. What kind of damage could there be?

The legal regime of the Copyright Act 1976 sets the amount of the prize between $750 and $30,000 per work, as determined by the court. This means that ComicMix can eventually only pay $1,500 or up to $60,000 for the EHR (yuck!). More importantly, the judge has the discretion to increase this amount to $150,000 per job if it is determined that the violation was intentional. If the infringement is unintentional, i.e. if the infringer did not know that he or she was infringing copyright, the damage can be limited to a minimum of $200 per work. This means that the ComicMix fines can range from $400 (the price of a ticket) to $300,000 (the price of a house!). And of course, if more than two pounds of Seuss are found, these numbers could rise.

Although I’m not a lawyer, I doubt if anything extreme will happen ($400,000 or $300,000). ComicMix knew what they were getting into and even mentioned it in their Kickstarter. They knew they might have to go to court to prove that Boldley was a play and that it was a fair measure. They threw the dice on this one. So it wasn’t entirely coincidental and unintentional. However, since ComicMix really thought what they did (and still do) was fair use, it’s hard to accuse them of a $150,000/pound offense for willful misconduct. Moreover, given the fact that the book was never published and that ComicMix never accepted money for crowdfunding, the maximum penalty in this particular case seems too punitive and unjustified.

Now, of course, ComicMix could win the case in front of a jury. If this is the case, another FSD appeal can be made, but this depends on the progress of the case and whether or not there is a basis for a complaint. You can’t appeal just because you don’t like the verdict. We should have made a procedural error.

THREE TO INSTALL

The last option for ComicMix, if they are really afraid of losing, is to try to negotiate with the ECtHR. Maybe ComicMix will offer to pay some legal fees to the DSE and promise never to try to publish Boldly again – or maybe to publish in a completely different artistic style. Or maybe they’re offering to buy a license for that… although it’s doubtful that FSD would want to treat them as a licensee at this time. It is also unclear what the FSD allows, since all characters are from Star Trek. If necessary, ComicMix will have to acquire a ViacomCBS license in addition to the EHR license – and the two licenses together could cost more than a judgment for breach of contract.

Of course, the FSD might not approve. Perhaps they want to make an example of ComicMix (as they have tried to do with other unauthorized works by Seuss in the past, and have often succeeded in doing) to scare others away from trying to mask Dr. Seuss with other traits in the future and hope that they can get away with it. On the other hand, do you remember the numbers I just mentioned? What happens if the FSD subsidy is $1,500 and there are no legal fees? Then they just lost four years, and the Grinch knows what’s what. It would now be possible to set an amount that is fair to both parties and save each party the costs of litigation and possibly other legal remedies. I don’t know if ComicMix is well funded, but they don’t swim in a pool of gold coins. The DSE can fight to the bitter end, win, and finally try to get the blood out of the stone.

WHAT’S NEXT?

I contacted Glenn HAUMAN of ComicMix to ask him what they were going to do as the call came back, but his answer was correct: ……

We intend to comment, but it will take some time to express our reaction in our usual rhyme.

However, Glenn told the New York Times that his attorney has not yet decided how to proceed. But Glenn was still pretty optimistic. He also told The Times: I’m just gonna quote Captain Kirk and say there are always possibilities.

Whatever happens, we’re done on the 4th. January to find out if ComicMix decides to try an en banc appeal, since the deadline for filing the application is 14 days from the date of the first appeal decision.

So stay tuned!

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