Seuss works is suing ComicMix for copyright infringement. Theodore Geisel a. Seuss passed away in Exactly how long a copyright lasts is a bit of a convoluted calculation, and depends on a number of factors.
Once the author or creator dies, the copyright passes on to either the family, the estate, or some other rights holder often a publisher or distributor that has purchased the rights. These subsequent rights holders are just as invested in maintaining the integrity of the copyright as the original creator. Consider these recent lawsuits:. Rinearson and Andrew M. Adler What is an organization required to do in Europe if it engages in Zetoony Computing on the Edge by: Robert M.
Kamer and Aubrey A. Slack and Peter A. Paolillo and Ellen L. Mitchell and F. Delaney and Kristina M. Kahlon and Aron C. Thomas and Michael P. Neifach and Otieno B. Porzio and Joshua S.
Bryan What a Deal! Ferrante and Nathaniel M. Porzio and Elizabeth A. Article By. Sarah Bro. IP Update Blog. Thursday, January 7, Related Legal Headlines. Server Test Showdown? By Corrine A. We have no doubt that the Cat's image is the highly expressive core of Dr.
Seuss' work. Under this factor, we also turn our attention "to the persuasiveness of a parodist's justification for the particular copying done, and the enquiry will harken back to the first of the statutory factors, for, as in prior cases, we recognize that the extent of permissible copying varies with the purpose and character of the use.
Katz and Wrinn insist that they selected The Cat in the Hat as the vehicle for their parody because of the similarities between the two stories: Nicole Brown and Ronald Goldman were surprised by a "Cat" O. Simpson who committed acts contrary to moral and legal authority. The prosecution of Simpson created a horrible mess, in which the defense team seemed to impose "tricks" on an unwilling public, resulting in a verdict that a substantial segment of the public regarded as astonishing.
Then add ST. Between the U and I, you see. Or maybe you don't. Maybe we will. And maybe we won't. Then who? Was it him? Was it her? Was it me? Was it you? The murderer is running free. Simpson trial, in the form of a Dr. Seuss parody that transposes the childish style and moral content of the classic works of Dr. Seuss to the world of adult concerns. We completely agree with the district court that Penguin and Dove's fair use defense is "pure shtick " and that their post-hoc characterization of the work is "completely unconvincing.
The fourth fair use factor is "the effect of the use upon the potential market for or value of the copyrighted work. Under this factor, we consider both the extent of market harm caused by the publication and distribution of The Cat NOT in the Hat! The Second Circuit has characterized this factor as calling for the striking of a balance "between the benefit the public will derive if the use is permitted and the personal gain the copyright owner will receive if the use is denied.
The less adverse effect that an alleged infringing use has on the copyright owner's expectation of gain, the less public benefit need be shown to justify the use. The good will and reputation associated with Dr. Seuss' work is substantial.
Because, on the facts presented, Penguin and Dove's use of The Cat in the Hat original was nontransformative, and admittedly commercial, we conclude that market substitution is at least more certain, and market harm may be more readily inferred. Since fair use is an affirmative defense, Penguin and Dove must bring forward favorable evidence about relevant markets. Given their failure to submit evidence on this point, instead confining "themselves to uncontroverted submissions that there was no likely effect on the market for the original," we conclude that "it is impossible to deal with the fourth factor except by recognizing that a silent record on an important factor bearing on fair use disentitle[s] the proponent of the defense," Penguin and Dove, to relief from the preliminary injunction.
Acuff-Rose, S. In light of the fair use analysis, we conclude that the district court's finding that Seuss showed a likelihood of success on the merits of the copyright claim was not clearly erroneous. We next examine whether serious questions for litigation and a balance of hardships favoring Seuss exist on the federal trademark and unfair competition claims.
The issue in trademark infringement actions is not the alleged appropriation of Seuss' creative expression, but rather, the likelihood of confusion in the market place as to the source of Penguin and Dove's The Cat NOT in the Hat!. A federal claim under Lanham Act S 43 a for infringement of an unregistered mark is triggered by a use which "is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association" of The Cat NOT in the Hat!
Lanham Act S 43 a , 15 U. The eight-factor Sleekcraft test is used in the Ninth Circuit to analyze the likelihood of confusion question in all trademark infringement cases, both competitive and noncompetitive.
AMF Inc. Sleekcraft Boats, F. These factors are to be considered in reaching a decision on the issue of likelihood of confusion. Restatement Third of Unfair Competition S 21, comment a The Sleekcraft court noted that this "list is not exhaustive" and "[o]ther variables may come into play depending on the particular facts presented. We agree with the district court's findings that under Sleekcraft many of the factors for analysis of trademark infringement were indeterminate and posed serious questions for litigation.
First, Penguin and Dove do not dispute that the Cat's stove-pipe hat, the words "Dr. Seuss," and the title "The Cat in the Hat" are widely recognized trademarks. Seuss" versus "Dr. Below is one example:. Fourth, there is no evidence of actual confusion. Fifth, the marketing channels used are indeterminate. Sixth, the use of the Cat's stove-pipe hat or the confusingly similar title to capture initial consumer attention, even though no actual sale is finally completed as a result of the confusion, may be still an infringement.
See Mobil Oil Corp. Pegasus Petroleum Corp. Seventh, Penguin and Dove's likely intent in selecting the Seuss marks was to draw consumer attention to what would otherwise be just one more book on the O.
Simpson murder trial. Eighth and last, the likelihood of expansion of the product lines is indeterminate. Even if Seuss establishes a likelihood of confusion, Penguin and Dove argue that their identical and confusingly similar use of Seuss' marks is offset by the work's parodic character. In a traditional trademark infringement suit founded on the likelihood of confusion rationale, the claim of parody is not really a separate "defense" as such, but merely a way of phrasing the traditional response that customers are not likely to be confused as to the source, sponsorship or approval.
Mutual of Omaha Ins. Novak, F. There are confusing parodies and non-confusing parodies. All they have in common is an attempt at humor through the use of someone else's trademark. A noninfringing parody is merely amusing, not confusing.
In several cases, the courts have held, in effect, that poking fun at a trademark is no joke and have issued injunctions. Examples include: a diaper bag with green and red bands and the wording "Gucchi Goo," allegedly poking fun at the wellknown Gucci name and the design mark, Gucci Shops, Inc. Kaye, F. Stating that, whereas a true parody will be so obvious that a clear distinction is preserved between the source of the target and the source of the parody, a court found that the "Hard Rain" logo was an infringement of the "Hard Rock" logo.
In such a case, the claim of parody is no defense "where the purpose of the similarity is to capitalize on a famous mark's popularity for the defendant's own commercial use. Pacific Graphics, Inc. We are satisfied that the district court's determinations on the existence of serious questions for litigation and a balance of hardships favoring Seuss are not clearly erroneous.
First, the district court properly found that serious questions exist for litigation because many of the factors for analysis of trademark infringement i. Second, the good will and reputation associated with The Cat in the Hat character and title, the name "Dr. Finally, we examine whether the injunction constitutes an abuse of discretion because it is overbroad.
The district court's order enjoins defendants "from directly or indirectly printing, publishing, delivering, distributing, selling, transferring, advertising or marketing the book The Cat NOT in the Hat! However, they created the all-or-nothing predicament in which they currently find themselves.
Even though the book had not yet been bound when Seuss initiated this action, Penguin and Dove still went forward with their production schedule and completed the stitching and binding. As a result, the publisher can no longer alter the final product to eliminate the infringing elements. Penguin and Dove's decision left the court no choice but to enjoin the entire book. After carefully reviewing the record and considering all of the arguments on appeal, we find no reason to disturb the district court's carefully crafted and well-reasoned injunction order.
For the foregoing reasons, we affirm the district court's order granting a preliminary injunction prohibiting the publication and distribution of the infringing work. Footnotes [ Footnote 1 ] "To obtain a preliminary injunction, the moving party must show either 1 a combination of probable success on the merits and the possibility of irreparable injury, or 2 that serious questions are raised and the balance of hardships tips sharply in its favor. These formulations are not different tests but represent two points on a sliding scale in which the degree of irreparable harm increases as the probability of success on the merits decreases.
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