On December 18, 2020, the Ninth Circuit Court of Appeals held that “Oh, the Places You’ll Boldly Go!,” a Dr. Seuss and Star Trek mashup illustrated book, is not a fair use exempted from copyright liability. Under the Copyright Act of 1976, the factors courts assess in determining if there is fair use include:
- The purpose and character of the use, including whether this use is commercial or for a nonprofit educational purpose;
- The nature of the copied work;
- The amount and substantiality of the portion used in relation to the copied work as a whole; and
- The effect of the use on the potential market for or value of the copied work.
17 U.S.C. § 107(1)-(4).
In 2019, the District Court for the Southern District of California had found that the mashup book was sufficiently transformative, under prong one of the fair use analysis, to constitute fair use. Amici were animated on both sides in front of the Court of Appeals, with copyright owners concerned that a finding of fair use would result in any mashup combining creative elements from disparate sources absolving the creator of copyright liability. On the other hand, some amici, such as Electronic Frontier Foundation and Public Knowledge, were worried about the suppression of creative expression.
The Ninth Court ultimately found that all of the fair use factors favored Dr. Seuss. In particular and in its analysis of the purpose and character of the book, the court reasoned that the mashup was not a parody of Dr. Seuss because it did not critique or comment on the copied material. This decision is a win for copyright owners seeking to protect their works. But it provides a cautionary tale to those who wish to create works based on a mashup of protected material without truly seeking to parody that content.