Dr. Seuss, the Juice and Fair Use: How the Grinch Silenced a Parody*

Santa Clara Law Santa Clara Law Digital Commons Faculty Publications Faculty Scholarship 1-1-1997 Dr. Seuss, The uiceJ and Fair Use: How the Grinch Silenced a Parody Tyler T. Ochoa Santa Clara University School of Law, [email protected] Follow this and additional works at: http://digitalcommons.law.scu.edu/facpubs Part of the Law Commons Recommended Citation 45 J. Copyright Soc'y U.S.A. 546 (1997-1998) This Article is brought to you for free and open access by the Faculty Scholarship at Santa Clara Law Digital Commons. It has been accepted for inclusion in Faculty Publications by an authorized administrator of Santa Clara Law Digital Commons. For more information, please contact [email protected]. 546 Journal, Copyright Society of the U.S.A. DR. SEUSS, THE JUICE AND FAIR USE: HOW THE GRINCH SILENCED A PARODY* by TYLER T. OCHOA** I. INTRODUCTION ................................. 546 II. THE IMPORTANCE OF PARODY AND SATIRE ...... 548 III. DEVELOPMENT OF THE FAIR USE DEFENSE FOR PARODY .......................................... 564 A. Basic Principles of Copyright Law .................. 564 B. Case Law Prior to 1976........................... 571 C. Case Law Under The Copyright Act of 1976.......... 574 D. Campbell v. Acuff-Rose Music, Inc.................. 580 1. Purpose and Character of the Use ............... 580 2. Nature of the Copyrighted Work................ 583 3. Amount and Substantiality of the Portion Used ... 583 4. Effect upon the Potential Market or Value ........ 584 E. Case Law Subsequent to Campbell.................. 584 IV. DR. SEUSS ENTERPRISES V. PENGUIN BOOKS USA, INC ............................................. 585 V. A CRITICAL ANALYSIS OF THE NINTH CIRCUIT'S OPINION................... .................... 589 A. Fair Use Defense to Copyright Claim ................ 589 1. Purpose and Character of the Use ............... 590 2. Nature of the Copyrighted Work.................. 599 3. Amount and Substantiality of the Portion Used ... 600 4. Effect upon the Potential Market or Value ........ 604 5. Balancing the Factors ......................... 615 B. Trademark and Dilution Theories of Protection ....... .620 VI. CONCLUSION .................................... 633 I INTRODUCTION Every Who down in Whoville liked parody a lot; But the Ninth Circuit Grinches, with jurisdiction over *Copyright 1998 Tyler T. Ochoa. **Associate Professor of Law, Whittier Law School. A.B. 1983, J.D. 1987, Stan- ford University. The author would like to thank Richard Gruner, Patricia Leary, Mark Lemley, Eugene Volokh, David Welkowitz and Andrew J. Wistrich for their helpful comments and suggestions concerning an earlier draft of this paper; and Stanley Fish and William Harmon for their assistance in identifying sources dis- cussing literary criticism. HeinOnline -- 45 J. Copyright Soc'y U.S.A. 546 1997-1998 How the Grinch Silenced a Parody 547 Whoville, did not! They were hostile to parody, whatever the season. Please don't ask why; no one quite knows the reason. It may have been that their ties were too tight, Or perhaps their heads weren't screwed on just right. But I think that the most likely reason of all Was that their sense of humor was two sizes too small. For nine months in 1995, media coverage of the O.J. Simpson double- murder trial transfixed the nation. The trial also gave rise to an astonish- ing number of books examining every possible aspect of the case, from biographies of the various personalities involved to post-hoc explanations of the verdict and its impact on or reflection of society. By one estimate, more than 60 volumes have already been published concerning the Simp- son case.1 Given the amount of information available about the Simpson case, the loss of one additional book to a court injunction may seem like a rela- tively minor matter. But this one book was like no other: it was a satirical account of the O.J. Simpson trial written in the style of Dr. Seuss. Entitled The Cat NOT in the Hat! and labeled "A Parody By Dr. Juice," the book recounted the events of the trial in simple and repetitive rhyming phrases like those used in The Cat in the Hat and 46 other children's books written by Theodor S. Geisel under the pseudonym Dr. Seuss. The Cat NOT in the Hat! was illustrated with thirteen depictions of a cartoon caricature of O.J. Simpson, also in the style of Dr. Seuss, wearing the Cat's distinctive red-and-white stovepipe hat. Based on a pre-publication advertisement, Dr. Seuss Enterprises filed suit against the authors and publishers of the parody, claiming that it vio- lated the Copyright Act, the Lanham Act, the Federal Trademark Dilution Act, and California Unfair Competition law by using copyrighted expres- sion and registered and unregistered trademarks belonging to the plaintiff.2 The District Court entered a preliminary injunction against the 1 Josh Getlin, Simpson Civil Case, Los ANGELES TIMEs, Feb. 11, 1997, at A16. A search for the words "O.J. Simpson" in the Internet bookstore amazon.com revealed 92 titles published after 1994. Amazon.com (visited Aug. 24, 1998) <http://www.amazon.com/ exec/obidos/subst/home/home.html>. Of those, 19 were videotapes or were books unrelated to the trial, and 23 were duplicate titles (paperback, audio and large-print editions), leaving a total of 50 titles currently available. A similar search on Oct. 18, 1997 re- sulted in a total of 45 distinct titles. Not all of the titles in earlier search are still available, however, so the estimate of more than 60 appears to be reasonable. 2 Dr. Seuss Enters., L.P., v. Penguin Books USA, Inc., 924 F. Supp. 1559, 1561- 62 (S.D. Cal. 1996). HeinOnline -- 45 J. Copyright Soc'y U.S.A. 547 1997-1998 548 Journal, Copyright Society of the U.S.A. defendants, holding that the plaintiff had demonstrated a likelihood of success on the merits of its copyright claim, and that the trademark claim presented serious questions for review and the balance of hardships fa- vored the plaintiff.3 On an interlocutory appeal, the District Court's rul- ings were affirmed by the Ninth Circuit in a published opinion.4 In this article, I will demonstrate that the Ninth Circuit's opinion was incorrect, both as a matter of law and as a matter of public policy. In its opinion, the Ninth Circuit misapplied controlling U.S. Supreme Court pre- cedent in holding that The Cat NOT in the Hat! was not a parody and was not a transformative use; in holding that the defendants were limited to that copying necessary to "conjure up" the original; and in presuming that the defendant's commercial parody would cause harm to the potential market for the original and licensed derivatives. Part II of this article will discuss the social importance of parody and the related forms of burlesque and satire. Part III will briefly review the development of the parody defense to copyright infringement, with partic- ular attention to the U.S. Supreme Court's 1994 opinion in Campbell v. Acuff-Rose Music, Inc.5 Part IV will summarize the Ninth Circuit's opinion in the Dr. Seuss case, while Part V will offer an alternative analysis explaining how the Ninth Circuit erred in enjoining publication of The Cat NOT in the Hat! II. THE IMPORTANCE OF PARODY AND SATIRE Although seemingly straightforward, the task of defining parody can be maddeningly elusive. Many authors have commented on the difficulty of defining parody6 and the related forms of burlesque7 and satire,8 and of 3 Id. at 1562. 4 Dr. Seuss Enters., L.P., v. Penguin Books USA, Inc., 109 F.3d 1394 (9th Cir. 1997). 5 510 U.S. 569 (1994). 6 See MARGARET A. ROSE, PARODY: ANCIENT, MODERN AND POST-MODERN 5 (1993) ("Lack of attention to the historical background of the terms used to define parody has been but one of the problems of parody definition. One other problem has been the restriction of the description of parody to only one or two aspects of that term or its usage."); JOSEPH A. DANE, PARODY: CRITICAL CONCEPTS VERSUS LITERARY PRACTICES, ARISTOPHANES TO STERNE 5 (1988) ("The definitions of 'parody' and related words . .. have a history - a history that distorts our view of the literature we conventionally regard as parodic."); id. at 123 (describing the "unsystematic and often acci- dental history of the vocabulary of parody"). 7 See ARCHIBALD BOLLING SHEPPERSON, THE NOVEL IN MOTLEY: A HISTORY OF THE BURLESQUE NOVEL IN ENGLISH 4 (1936) ("The word 'burlesque' as applied to literature has been used indiscriminately to include caricature, travesty and parody - themselves words of which the meanings are not widely differentiated."); V.C. CLINTON-BADDELEY, THE BURLESQUE TRA- HeinOnline -- 45 J. Copyright Soc'y U.S.A. 548 1997-1998 How the Grinch Silenced a Parody 549 the inadequacy of various dictionary definitions.9 At times, one is re- minded of Justice Stewart's famous dictum concerning pornography: "I know it when I see it."10 Nonetheless, in order to apply copyright law to parody intelligently, it is necessary to attempt to reach a working definition of the term "parody," and to understand how parody is related to both burlesque and satire. To begin, the Oxford English Dictionary defines parody as follows: A composition in prose or verse in which the characteristic turns of thought and phrase in an author or class of authors are imi- tated in such a way as to make them appear ridiculous, especially by applying them to ludicrously inappropriate subjects; an imita- tion of a work more or less closely modelled on the original, but so turned as to produce a ridiculous effect." DITION IN THE ENGLISH THEATRE AFTER 1660 5 (1952) ("The exact art of burlesque is not easy to define clearly, because at different times the word has been used to mean different things.").

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