There are consequences to sending out cease and desist letters for copyright infringement but a lawsuit for interference with business is not one that had to be expected. A judge has issued a decision holding that an Off-Broadway parody of Dr. Seuss’s The Grinch Whole Stole Christmas is protected fair use and therefore not copyright infringement.
A middle aged Cindy Lou Who missed her Off-Broadway debut this past holiday season after funding was withdrawn for “Who’s Holiday!,” an unauthorized parody spin-off of Dr. Seuss’ iconic “How The Grinch Stole Christmas!” The play, written by Matthew Lombardo, features forty-five year old Cindy telling stories from her life since we first met her and the Grinch all those years ago. Clearly fair use right??
Production for the Grinch spin-off halted sometime after Dr. Seuss Enterprises LLC discovered marketing fliers promoting “Who’s Holiday!” which used Dr. Seuss styled font and a copyrighted image of Cindy Lou Who. Having not authorized such uses, Dr. Seuss sent a string of cease-and-desist notices over the course of several months, many of which were left unanswered. It wasn’t until playwright Lombardo and Who’s Holiday LLC filed a lawsuit in December 2016 that Dr. Seuss heard from them again. Plaintiff sought a declaratory judgment, which if successful, would allow “Who’s Holiday!” to move forward with financing and production as permissible, yet unauthorized, fair use under Section 107 of the Copyright Act.
In its written decision, the Court reviewed the four fair use factors and held that the play was a parody since it was not merely a recitation of the original work but a parody of it; found that the amount of the Grinch copyright used was reasonable for the needs of the intended transformative use; and that there was virtually no possibility that someone would ever see the play instead of reading the book or watching the television special. This last factor was a biggie. Therefore, the judge found that this was fair use.
As a special Christmas bonus, the judge awarded plaintiff its costs including attorneys’ fees in an amount to be determined. The Seuss Estate has been particularly stringent over use of its intellectual property and this is a big lose. The Estate can still appeal this matter if they want to keep the case going. The Court reiterated that fair use is a case by case analysis, so this should serve as education and not something to be relied upon by people thinking of doing the same thing.